Lerners’ Weekly Family Caselaw Review # 11
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law lawyers present one of the most interesting cases from the week of November 30, 2020:
With the adjustments to Court services and resulting backlog of cases due to COVID-19, our Courts are doing what they can to ensure that the limited Court resources are used efficiently. For this week’s blog post we look at the recent case of Froman v. Pletch, 2020 ONCJ 571, in which Justice Baker heard and granted a motion for summary judgment by 14B Motion.
Justice Baker acknowledged that the respondent mother’s proposal that the motion for summary judgment proceed as a Form 14B motion – a procedural, uncomplicated or unopposed motion in writing – would be a “substantial divergence from the ‘usual’ practice”, even during this pandemic. Presently, parties who wish to bring a summary judgment motion must seek leave of the Court to schedule a hearing before a judge, due to the continuing COVID-related restrictions on Court services. Previously, parties would have been able to serve a notice of motion without needing leave.
The Respondent mother sought summary judgment dismissing the claims set out in the Application and making final Orders on the issues of custody, access, travel, mobility, table child support, and section 7 expenses. She served the 14B motion on the Applicant father by email. The father did not respond, making the 14B motion effectively unopposed.
Nevertheless, Justice Baker had to satisfy herself that it was “fair and appropriate” to make the final substantive Orders sought by the mother by this process.
In considering whether the father had sufficient notice, given the serious relief sought, it was of particular concern that self-represented parties like the father may not be aware of the need to respond quickly to such a motion. The four-day timeline to respond to a 14B motion under the Family Law Rules is not listed on the face of the document. It had been 10 days between service of the motion and Justice Baker’s endorsement, and she found that this was sufficient notice given that self-represented litigants are still bound by the Family Law Rules and the father had only participated in the litigation in a “half-hearted” way and had been not participating for some time. The materials served and filed by the mother, who was represented by counsel, were clear in their stated relief that she was seeking the dismissal of the father’s claims and sought detailed substantive Orders without any oral hearing.
Justice Baker granted decision making and primary residence of the child to the mother and parenting time with the father at the mother’s discretion, ordered child support and section 7 expenses be paid by the father based on an imputed income, and made travel and other mobility-related Orders. This post does not delve into the merits or analysis of any of the substantive claims, as the novel aspect of this case is the process.
Justice Baker observed that “this motion lays bare some of the challenges in Court function that have arisen as a result of the public health emergency and the consequent Court restrictions.” and that “the requirement to allocate resources to any single case whilst taking into account the need to give resources to other cases is perhaps even more vital now, with the continuing Court restrictions.” The implication of this case is that Courts are having to creatively manage the limited resources available to them.
These are challenging times and there is a difficult balance to be struck between procedural fairness and the efficient use of Court resources. On the facts of this case, that balance favoured adjudicating substantive issues on a limited written record, especially given the Applicant’s lack of participation prior to the motion, but it is unlikely that we will see summary judgment regularly adjudicated in this way. Nonetheless, this case serves as a helpful reminder, especially to self-represented litigants, to always respond to 14B motions!
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