FINALLY! PROPER MOTION PRACTICE STANDARDS IN ONTARIO – JUSTICE SHARMA NAILS IT. THANK YOU, YOUR HONOUR.
Justice Mohan Sharma was appointed to the Ontario Superior Court of Justice in March 2021. At the time of his appointment, Mr. Justice Sharma was the Executive Legal Officer for that same court, providing legal and policy advice to the Court’s judges; he was also Senior Counsel in the Office of the Chief Justice. He had held a number of other positions that highlight his focus on proper standards of practice in this province.
Justice Sharma’s decision (17 December 2024) in Dupont-Goode v. Ashmeade, 2024 ONSC 7092 (Ont. SCJ) has provided much-needed clarity on family law motion practice standards in Ontario. As a family law lawyer, you’ll appreciate the comprehensive guidelines outlined in paragraph 10 of the decision. As a self repped litigant, you will have a leg up on your opposition (if you read and absorb this entire blog post)!
Justice Sharma emphasizes the importance of proper motion materials, highlighting what should and shouldn’t be included in affidavits. He stresses that affidavits should contain only relevant, material facts, and avoid irrelevant or scandalous information.
Some key takeaways from Justice Sharma’s guidelines include:
- Proper Affidavit Content: Affidavits should contain detailed facts supporting allegations or positions, without pleading the law or citing legal authorities.
- Expert Opinions: Expert opinions should be presented in separate affidavits, meeting the requirements under Rule 20.1 of the Family Law Rules.
- Exhibits: Only necessary, relevant, and material exhibits should be attached, with clear explanations of their relevance.
- Factums: Factums should be concise, laser-focused, and organized, with clear headings and numbered paragraphs.
Justice Sharma’s decision is a welcome reminder of the importance of proper family law motion practice. My own view is that the practice directions and the notices to the profession seriously curtail our ability to present that evidence which Justice Sharma correctly tells us has to come forward as separate affidavits and not as hearsay. We need to listen to Justice Sharma but in doing so, we will have exceeded the mandatory page limits. These current page limits can be restrictive, and it is therefore essential to seek advance permission (14B Motion) to exceed these limits when necessary. However, it is my view that it is high time to abolish those limits and leave it up to individual motion judges to chastise those who present overly lengthy motion materials. The best advocacy is brief. Say less and have a greater impact. That’s my two cents worth. But I really don’t want to detract one iota from Justice Sharma’s most well-placed admonitions.
Overall, Justice Sharma’s guidelines provide valuable insights for family law lawyers and self-represented litigants alike, promoting clarity, efficiency, and effective advocacy in family law motion practice.
So here are Justice Sharma’s words of wisdom verbatim:
1. Given the frequency with which improper motion materials are filed in family proceedings, it is worth reminding counsel in this case and the profession more generally of what is appropriate in support of a family motion.
2. A Notice of Motion should succinctly set out the relief sought and may cite the statutory basis for the relief. However, it is not appropriate to recopy the text of rules or statutory provisions or cite and re-copy portions of caselaw within a Notice of Motion.
3. Evidence on a motion may be given by way of affidavit or other admissible evidence in writing, a transcript of questions and answers from questioning under rule 20, or with the court’s permission, oral evidence: R. 14(17) Family Law Rule
4. An affidavit should contain only relevant facts that are material to the issues raised in the motion. The inclusion of facts that are irrelevant or not material to the issues to be decided constitutes poor advocacy. It distracts the judge from the issues to be decided, consumes limited affidavit space, and raises costs unnecessarily for both parties. The insertion of irrelevant, scandalous and immaterial facts suggests to a judge that a litigant is more concerned about maligning the opposing party than meeting the prescribed legal test for the relief sought. It creates an irrelevant distraction.
5. An affidavit should contain detailed facts in support of an allegation or position taken on the motion. For example, it is not sufficient to state the opposing party engaged in family violence, without providing detailed facts of the alleged family violence.
6. An affidavit should not plead the law, contain argument, or cite legal authorities or authoritative texts. These matters should be in a factum.
7. An affidavit must contain admissible evidence. In certain circumstances, limited hearsay evidence may be found to be admissible and given weight by the presiding judge where it is necessary to receive such evidence and where such evidence has indicia of reliability, or where another exception to the rule against hearsay evidence applies. However, a party’s affidavit should not rely significantly on hearsay evidence as the basis to support or refute allegations. Affidavits from individuals with firsthand knowledge of the information should be filed, and if necessary, leave should be sought to file additional affidavits than are permitted under the Court’s Practice Direction.
8. In family cases, opinions of doctors, teachers, Children’s Aid Society (“CAS”) workers, or therapists are often relevant to the outcome of a case. Their opinions should not be in the text of a party’s affidavit, nor should reports with opinions from such professionals be attached as exhibits to an affidavit. It is also not proper to include within an affidavit text of a published report or other external sources from purported experts where their opinions are expressed.Instead, the purported expert who is expressing an opinion should prepare their own affidavits. If expert opinion evidence is to be relied upon, it must be provided by an expert and the requirements under rule 20.1 of the Family Law Rules must be met. It is not common to have expert opinion evidence on a motion; expert opinion evidence is most often relied upon at trial where their opinion can be tested under cross-examination. If opinion evidence is to be admitted on a motion, leave should be sought for the admission of an affidavit of an expert.However, where an exhibit is a business record that merely records an act, transaction, occurrence or event (and not an opinion), it may be attached to an affidavit as an exhibit: Evidence Act, RSO 1990, c. E.23, s. 35. Examples include a child’s attendance record maintained by a school, work or employment records, and records maintained by a CAS that records facts or observations of a CAS worker. See Catholic Children’s Aid Society of Toronto v. L. (J.), 2003 CanLII 57514 (ON CJ), 2003 39 RFL (5th) 54 (ON CJ), at paras. 10 – 11; Dworakowski v. Dworakowski, 2022 ONCSC 7209 at para. 52.
9. Only necessary, relevant and material exhibits should be attached to an affidavit. The exhibit must be legible. The text of the affidavit that references the exhibit should explain specifically what the exhibit is intended to demonstrate.
10. Counsel have a duty not to mislead the Court. When attaching extracts of text or email messages as exhibits, counsel should carefully consider if several pages of text/email messages, rather than a single page, should be included as an exhibit to ensure the context in which the message was sent and received is properly understood by the Court. A single page of text/email messages, with only one statement being relied upon by a litigant, may be insufficient to reach a factual conclusion or inference if the context in which the message was sent and received is not readily understood, or if only a single page of the text/email message is entered. Counsel may also consider, within the text of the affidavit, explaining the context in which the message was sent or received. If not readily apparent, the text message should make clear who is saying what.
11. It is a best practice to hyperlink exhibits within an affidavit to permit a judge to review and consider exhibits efficiently. Hyperlinks allow judges to quickly look at the exhibit while reading the text of the affidavit, and then return to where they left off in the affidavit.
12. Font, spacing and page limits prescribed in the Practice Direction must be followed.
13. It is improper to attach as an exhibit to an affidavit an affidavit of a different person to overcome the restriction in the Practice Direction that only one primary affidavit may be filed for a motion or cross-motion.
14. It is poor advocacy to repeat the parties’ full names each time a party is referenced in an affidavit. If an Affidavit is sworn by a party, they should refer to themselves in the first person (i.e., “I” or “me”), rather than the third person (i.e., “The Respondent, Noshina Ashmeade” or “she”). Use of the third person suggests that the words in the affidavit are not facts sworn by an affiant, but legal argument of the lawyer who prepared it.
15. An affidavit should be reviewed by a party’s lawyer for proper spelling and grammar prior to the party swearing an affidavit. While minor errors will rarely impact the outcome of a motion, the improper use of grammar can raise questions about what the affiant intended by the words used.
16. It is improper to mention the substantive contents of an Offer to Settle when the substance of the Offer is the subject of the motion. Nor is it proper to refer to discussions at a case conference, settlement conference or trial management conference, including opinions expressed by a previous judge involved in the case.
17. Factums should be laser-focussed. In numbered paragraphs and in an organized manner with subheadings, they should:
a. Identify the relief that is sought as set out in the Notice of Motion;
b. Provide a brief factual background of the case that is relevant to the motion;
c. Identify the issues to be decided on the motion;
d. Identify the legal test to be applied, including any factors, and with reference to the relevant statutory authority and caselaw;
e. Pinpoint the paragraphs within the affidavit evidence that establish the facts relevant to the legal test to be applied. Parties should not simply cut and paste an affidavit into a factum. The facts should be synthesized and applied to the legal test; and
f. Conclude by explaining how the legal test has been met and what orders should be granted.
Conclusions: At the Gene C. Colman Family Law Centre, we endeavour to stay abreast of the law and to provide wise family law representation, including motions. We are proud to have already adhered to many of the standards that Justice Sharma has so powerfully outlined.
Contact us today to learn more about how we can support you in family law litigation, be it court based, or arbitration based. At the Gene C. Colman Law Centre we prioritize procedural fairness and finding creative ways to persuasively present motion materials. We can help you prepare your motion materials if you engage us to first conduct a comprehensive analysis of your case. For after all, motions do not exist in a vacuum.
You can take steps towards arranging an in-depth consultation with Gene C. Colman by visiting us online or by calling us today at 888-389-3099.
