Topic: Summary Judgment in Family Law Cases
Family law cases can also be resolved through summary judgment disposition. Though most
family law cases are mainly based on facts, summary judgment could be an effective mechanism
of fully or partially resolving family law matters.

Summary judgment is also applicable to family law cases
Amendments to the Rules of Family Law
Most states have amended their family law rules to allow for parties to seek summary judgment.
To a greater extent, the changes mirror those made to various rules of civil procedure. The said
changes include;
a. Expanding the power of the court to weigh evidence, analyze the credibility of a
deponent and draw inference from evidence.
b. Create an opportunity for oral evidence or a mini trial.
c. Remove the provisions regarding costs that obligated the court to settle on costs on a full
recovery basis regarding an unsuccessful motion for summary judgment.;_ylt=AwrFO14dGQdlYEYrtd1XNyoA;_ylu=Y29sb
Approach to Summary Judgment in Family Law

The novel summary judgment rules under Family Law Riles have been judicially construed and
applied in various cases. One of the cases decided under the novel rules was Philion v Philion,
[2015] O.J. No. 3587 where the court applied the two-part test as follows;
1. The motions judge ought to adopt a liberal approach only on the evidence presented,
without using novel fact-finding powers under the second part of the test. If the summary
judgment process provides the motions judge with evidence required to justly determine
the motion, it will be held that there is no genuine issue requiring trial.
2. If there is no genuine issue requiring a trial, the motions judge is entitled, at his
discretion, to weigh evidence, assess credibility and draw reasonable inferences to
determine whether there is need of trial.
Family law summary judgment cases continue to apply the preceding principle.

A summary judgment is issued when there is no genuine issues requiring trial
Primary Objective of the Family Law Rules in relation to Summary Judgment
The amendments made to the rules governing summary judgment in family law were as a result
of the need to promote access to justice and proportionality. Nonetheless, the preceding objective
ought to be balanced with the requirement to ensure fairness. This balancing is contained in the
primary objective of the rules which is ensuring procedural fairness to all parties; saving time
and expenses; dealing with a case efficiently; and utilizing the court resources efficiently.;_ylt=AwrFO14dGQdlYEYrtt1XNyoA;_ylu=Y29sb

The Onus of a Motion for Summary Judgment
The movant in a family law case has the burden of establishing a prima facie case that there exist
no genuine issue requiring trial. If the burden is met, the onus shifts the responding party to
outline facts that there exits a genuine issue requiring trial. The evidentiary burden enables
judges to assess whether the facts on record provide adequate evidence to adjudicate the matter
with or without trial.;_ylt=AwrFO14dGQdlYEYrt91XNyoA;_ylu=Y29sb
Evidence Requirements
It is important that all parties, not just the movant, in a family law case put their best foot
forward regarding a motion for summary judgment. Since the onus normally shifts to the
responding party if the movant establishes a prima facie case, the thoughtfulness and quality of
the responding party’s evidence is as significant.
Further, the non-movant response to the affidavit or other evidence served by the movant should
not contain mere denials or allegations. Nonetheless, it should outline the facts demonstrating
that there is a genuine issue that ought to be heard on trial.

The onus lies on the movant to establish a prima facie case before the it shifts to the
responding party

Generally, there is a reluctance of family law litigants to pursue a motion for summary judgment
owing to the harsh consequences of a failed motion. Nonetheless, the court systems have
introduced mechanisms that facilitate acquisition and presentation of evidence hence parties

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