BB. Rescission of Orders

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 565-565

Evidence; Procedure; Costs 565

AA. SUMMARY JUDGMENT

On a motion to dismiss a claim by way of a sum mary judgment under Alberta Rule 159, the

material must clearly demonstrate that the action has no reasonable prospect of success

and that it does not raise a genuine issue for trial.2 03

Where there is no genuine issue for trial, an Ontar io court may grant a summary judg-

ment for divorce and for the applicable table amount of child support.204

Rule 16(12) of the Ontario Family Law Rules allows a court to decide a question of law

before trial.205 A motion for summary judgment will be dismissed where genuine issues

for trial arise on both the facts and law as to whether the respondent stood in the place of

a parent to the child and, if so, the extent of his child support obligation, if any.206 Where

a father’s plea of undue hardship because of outstanding family debts is not unrealistic in

light of his f‌inancial statement, the mother’s motion for a summary judgment may be dis-

missed on the basis that she has f ailed to prove on a balance of probabilities that there is no

genuine issue for trial.207

BB. RESCISSION OF ORDERS

Rule 59.06(2) of the Ontario Rules of Civil Procedure confers jurisdiction on the Ontario

Superior Court of Justice to set aside or vary an order on the ground of fraud or of facts

arising or discovered af ter the order is made. e Ontario Rules of Civil Procedure are avail-

able when needed as a back-up to the Ontario Family Law Rules by virtue of Rule 7 of the

Ontario Family Law Rules. Where new facts have arisen or been discovered, the court has

an inherent jurisdiction to prevent a miscarriage of justice by retroactively rescinding or

changing an ex isting order.208

CC. EXPERT OPINIONS

e af‌f‌idavit of a chartered accountant may quite properly set out his assu mptions and the

factual background relied upon in formulating an opinion as to a parent’s annual income,

but the af‌f‌idavit must not go beyond the expert’s f‌ield of expertise or volunteer a legal opin-

ion. Objection may be taken insofar as t he af‌f‌idavit is in the nature of a legal submission or

“argument” and any such material may be struck from the af‌f‌idavit. A court is free to ac-

cept or reject the expert’s opinion in whole or in part. Where the exp ert has postul ated his

assumptions of fact and the basis on which he has come to an opinion or conclusion, it is

possible for a court to give appropriate weight to the opinion without abdicating the judicial

responsibility to make f‌indings of fact on those very same assumptions. Expert opinion as

to a parent’s income may be presented on a motion for interim support where the parties

are far apart on thi s issue, but in many cases the probative value of the expert opinion will

be undermined by the fact that untested assumptions have been made prior to the discov-

203 ompson v. ompson, [2003] A.J. No. 1577 (Q.B.)

204 Coulson v. Farmer, [1999] O.J. No. 2478 (S.C.J.).

205 Budden v. Brigg s, [2003] O.J. No. 5528 (S.C.J.).

206 I.G. v. H.B., [2003] O.J. No. 5285 (S.C.J.).

207 Wiltshire v. Wiltshire, [2003] O.J. No. 3099 (S.C.J.).

208 West v. West , [2001] O.J. No. 2149 (S.C.J.) (attendant circu mstances deemed insu f‌f‌icient to warrant judi-

cial interference w ith temporary support order).