Rarely do litigants succeed on a summary judgement motion, especially in cases concerning custody and access of children, given that a court in such motions is restrained from making findings of fact or credibility. Nevertheless, in Sui v. Law, a case concerning the custody of two children, the court grants the summary judgement order sought by the children’s grandparents, despite the more usual occurrence of a court not doing so.
The children in this case, at the time of the motion, were 13 and 15 years of age respectively. The mother, along with her two children, moved to Canada from Hong Kong in 1998, and lived with the mother’s parents until her death in 2007. The children continued to reside with the maternal grandmother even after their mother’s death. The children’s father had not seen his children for a considerable period of time during their lives, and furthermore, had not paid any child support as ordered in October 2006. The father, however, in 2006 was granted an order for access to the children. Nevertheless, there were problems with this access order, as the children did not want to see their father whom they strongly felt was not a parental figure. Eventually, in September 2007, the father consented to a change to the October 2006 order, and thereby was required to abide by a supervised therapeutic access schedule. The father, however, did not follow through with the visitation schedule. After the mother’s tragic death, the maternal grandparents sought to make a claim for custody of the said children. They subsequently brought a motion for summary judgement on the basis that there were no genuine issues for trial. They submitted that based on the children’s strongly held views, their preferences to be with their grandparents, their long-term relationship with their grandparents, their nearly non-existent relationship with their father, and their father’s refusal to pay child support to the children despite there being a court order, there was no question that the father would not receive custody, and therefore it was a misuse of the court’s time to proceed with the issues. The maternal grandparents and their counsel further submitted that the Office of the Children’s Lawyer (hereinafter “OCL”) had interviewed the children extensively, and confirmed the consistency of the children’s expressed negative views toward their father. Furthermore, the OCL was supportive of the grandparents’ motion for summary judgment, determining that the father’s court material did not set out any basis for awarding him custody, other than a mere biological connection. In reaching its decision, the court in Sui v. Law seemed to place quite a bit of emphasis on the views expressed by the OCL, and furthermore, on the fact that the father’s submissions did not acknowledge that the views and preferences of his children should be given any weight in the proceedings. The father’s submissions gave the court the impression that the father believed that biology should prevail and trump all other considerations in a custody hearing. Unfortunate for him, the court did not agree. The court further noted that during the motion, the father did not point the judge to any specific fact or evidence that would support him having custody of the children other than their biological connection.
After hearing the submissions from both counsel, the judge granted the order for summary judgment, finding that there was no possibility of success by the father on the issue of custody at trial. Consequently, sole custody of the children was awarded to the maternal grandparents.