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;

  1. Expanding the power of the court to weigh evidence, analyze the credibility of a deponent and draw inference from evidence.
  2. Create an opportunity for oral evidence or a mini trial.
  3. 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.

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.

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.

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 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 are now equipped with the necessary tools to limit claims that lack merit.