If people, and particularly parents, can find more innovative and more intelligent ways to reduce conflict, then everyone would ultimately benefit. A better outcome could be achieved with far less conflict and costs in legal fees if parties are more willing to compromise. We can help parties move forward and focus on what really matters rather than be stuck in perpetual conflict. It is worth reflecting on a quote by Abraham Lincoln that speaks to that, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time." What is unique about family proceedings is that a party can bring the matter back to Court showing a material change in circumstances. 

 

This of course leads to even more conflict if a party is inclined to do so. Conflict has its own way of perpetuating itself, and a person can lose a lot more than the proceeding is ultimately worth, trying to gain the right outcome. As such, in family Court proceedings it is in the children's best interests that parents try to resolve their matters out of Court, such as by way of a separation agreement. It is almost always more cost effective and less stressful for parents than prolonged Family Court litigation. 

 

Motion for Summary Judgement

Sometimes, a party refuses to resolve a dispute simply for the sake of continuing the disagreement rather than accepting a reasonable assessment of the merits of their position and what the outcome would be if it were adjudicated. Even if resolving a dispute rather than litigating the issue would lead to a better outcome, people refuse, and this occurs for a variety of reasons. That is where a motion for summary judgement is the appropriate "treatment" for this issue. 

 

On a motion for summary judgment, the Court assumes that the parties have each advanced their best case and that the record contains all the evidence that would be led at trial. Each party is obliged to put their best foot forward on a motion for summary judgment. They are not permitted to sit back and suggest that they would call additional evidence at trial: Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, 30 B.L.R. (6th) 1, at para. 4; Ntakos Estate v. Ntakos, 2022 ONCA 301, 75 E.T.R. (4th) 167, at para. 38; Salvatore v. Tommasini, 2021 ONCA 691, at para. 17; Miaskowski v. Persaud, 2015 ONSC 1654, 51 R.P.R. (5th) 234, at para. 62, rev’d on other grounds, 2015 ONCA 758, 342 O.A.C. 167.

Rowe v. 1225064 Ontario Limited, 2022 ONSC 5036 (CanLII)

 

Affidavit Evidence

Affidavits on a motion for summary judgement should only contain trial worthy evidence and specific statements of fact that are within the personal knowledge of the person swearing the affidavit, the Deponent. 

 

Hearsay evidence, which is defined as another person's words by a witness, is not considered admissible. Statements made by others in a document that is relied upon to prove the truth of what was stated, is hearsay. There are exceptions; however, hearsay is generally not admissible in trials because it does not have the usual measures of trustworthiness: it is not made in front of a Judge; it is not made under oath or affirmation; and it cannot be tested by cross-examination. For those reasons, it is difficult to assess the reliability of a bare hearsay assertion. 

 

Affidavits should not contain improper hearsay evidence tendered in violation of the rules of evidence, and will not be given any weight by the Court. However for non-contentious facts, it can be argued this is part of the narrative, and as such meets the narrative exception to hearsay. In one case, a Judge accepted the affidavit of a legal assistant, and stated, "She may also provide information that she believes to be true, that she has received from sources, which sources she has identified as required when one deposes an affidavit.  The evidence is admissible and the issue is a matter of weight for the Court to decide."

Lacroix et al. v. Central-McKinlay, 2023 ONSC 485 (CanLII), at para 46. 

 

Further to this, affidavits should not have intemperate language or accusations that are scandalous, or vexatious. In addition to this, if the affidavit evidence contains opinions, and not facts, those statements will not be admissible evidence. Opinions and arguments are not facts, rather they are considered as conclusions. Opinions and arguments in affidavits are not proper admissible evidence, and is disregarded and given no weight by the Court. An affidavit should only set out the facts, and not opinions, arguments, or anything that is not relevant to the issues in dispute. 

 

Alternative Dispute Resolution

Negotiations and Alternative Dispute Resolution (ADR) is one type of process to come to a resolution, the other more common one being litigation and adjudication by a third party. However is one way better than another? The answer is yes, ADR is better for two reasons: the parties have more control over the final outcome down to the most minute of details and the parties' overall costs in resolving the dispute is significantly less. As such, favoring the ADR process over the litigation process has practical benefits for parties involved in a dispute.

 

 A litigant may choose not to do ADR under the misapprehension they might obtain a more favourable outcome in Court. Unless there is a lack of reasonableness on both parties, objectively speaking when taking into account the cost of litigation, often times the costs involved in fighting a dispute is far more than what the dispute could ever be assessed to be worth at its highest. The best approach is to almost always favor some time of ADR process first to try to narrow the issues in dispute and only use the Court system as an option of last resort. 

 

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