Court File and Parties

Court File No.: D81151/15 Date: August 15, 2017 Ontario Court of Justice

Between:

Zhi Xiong Cheng and Yi Qin Hu Applicants

— AND —

Wei Ying Yu Respondent

Before: Justice Roselyn Zisman

Heard on: June 30, 2017

Reasons for Judgment released on: August 15, 2017

Counsel

James R. Olchowy — counsel for the applicants

Annie Chu — counsel for the respondent

Tammy Law — counsel for the Office of the Children's Lawyer, legal representative for the child, Kenny Cheng

ZISMAN, J.:

1. Introduction

[1] This is a summary judgment motion brought by Ms. Law, counsel for the child, Kenny Cheng born August 2, 2014 ("Kenny" or "the child").

[2] The Applicants Zhi Xiong and Yi Qin Hu are the paternal grandfather and the paternal grandmother ("the paternal grandfather", "the paternal grandmother" or "the paternal grandparents").

[3] The Respondent Wei Ying Yu is the child's maternal grandmother ("the maternal grandmother").

[4] Counsel for the child seeks a final order as follows:

a) the Respondent shall have sole custody of the child;

b) the Respondent shall be permitted to travel with the child without the consent of the Applicants;

c) the Applicants shall be permitted access to information about the child with the consent of the child;

d) the Applicants and the child shall be permitted to exchange electronic cards and gifts on special occasions;

e) in person and telephone access between the child and the Applicants shall be according to the child's wishes; and

f) in the alternative to paragraph (e), an order that in person access between the child and the Applicants shall be twice a year for two hours in the community with several conditions.

[5] The maternal grandmother supports the position of counsel for the child.

[6] The paternal grandparents seek an order dismissing the summary judgment motion.

2. Background and Undisputed Facts

[7] The paternal grandparents immigrated to Canada approximately 30 years ago with their children. Kenny's father, Ji Jiang Cheng moved back to China in 2001 to pursue some business interests. In China he met and married Ping Ping Ge. Kenny was born on August 2, 2004 in China. Kenny is a Canadian citizen as a result of his father being Canadian.

[8] On December 16, 2011 Kenny's parents were killed in a car accident. Kenny was in the same car as his parents and was the sole survivor of the accident. His parents died without a will.

[9] Kenny was in the hospital for about a month with serious injuries but he has now recovered.

[10] The paternal grandparents went to China after the accident. They visited Kenny in the hospital as did the maternal grandmother. The paternal family paid for Kenny's extensive medical bills.

[11] The paternal grandparents subsequently returned to Canada. Kenny remained in China and in the primary care of the maternal grandmother and maternal grandfather.

[12] Prior to their son's death, the paternal grandparents visited Kenny once or twice a year and communicated with Kenny and his parents using Skype.

[13] Prior to and after the accident Kenny attended an international school in Shanghai.

[14] After the accident in December 2011 and while Kenny was still in China, the paternal grandparents visited him at his school approximately once a year. The paternal grandparents did not send him any birthday presents or cards and did not telephone him during this time.

[15] In February 2015, the maternal grandmother came to Canada with Kenny and resided in a basement apartment in Toronto. They moved to their current residence in Richmond Hill in June 2015 and have continued to reside there subject to several trips back to China.

[16] The maternal grandmother returned to China with Kenny on June 29, 2015 and returned on August 13, 2015 and again returned to China with Kenny on January 27, 2016 and returned on March 29, 2016. After a contested motion, the maternal grandmother was permitted to travel to China with Kenny from June 26, 2016 to August 18, 2016.

[17] Since moving to Canada, Kenny has been enrolled in school and is doing well. Kenny has been under the care of a doctor.

[18] There has been contested litigation in China with respect to Kenny's guardianship since 2012.

[19] The most recent order from China is dated July 31, 2015 which dismissed the paternal grandparents' appeal of a final June 4, 2014 order that granted the maternal grandmother guardianship of Kenny.

[20] After discovering that Kenny and the maternal grandmother had moved to Canada, Jim Cheng, the paternal uncle, on behalf of the paternal grandparents, contacted the Toronto Children's Aid Society, the Peel Regional Police and their Member of Parliament. In addition to attempting to locate Kenny, Mr. Cheng made many allegations against the maternal grandmother including that she committed immigration fraud, that she abducted Kenny and intended to abandon and sell him, that she stole Kenny's father's property and that she did not have the financial resources to properly care for Kenny.

[21] As a result of these allegations, the Children's Aid Society investigated. Nick Green, the worker assigned to the case, met privately with Kenny, attended at the residence, spoke to the maternal grandmother and he also spoke to the school principal. None of the concerns were verified and the file was closed.

[22] The paternal grandparents commenced this litigation on June 30, 2015.

[23] The maternal grandmother in June 2016 commenced litigation in the Superior Court of Justice to set aside the fraudulent conveyance of property or in the alternative, for damages of $470,000 on the basis that the paternal grandparents used Kenny's father's Power of Attorney, 8 months after his death, to transfer a property that was in Kenny's father's name to themselves and then sold the property. The paternal grandparents have filed a Statement of Defence.

3. History of Court Proceedings in China

[24] In the materials filed there is a great deal of information and contradictory evidence with respect to the proceedings in China. Although not strictly necessary for the purposes of this motion, I find that in order to understand the context of the relationship between the parties and its impact on the child it is important to review those proceedings. It is also relevant to the motion by counsel for the child to strike much of the affidavit of Jim Cheng that was filed in response to the summary judgment motion. I rely on either the undisputed evidence or the actual translated documents that have been produced.

[25] On January 17, 2012, the maternal grandmother was granted a Certificate of Custody and Guardianship of Kenny. She also then applied for orphan benefits on his behalf. Upon learning of the decision, the paternal grandparents took steps to appeal the decision.

[26] On July 4, 2012 the court, upon being advised by the paternal grandparents that Kenny was a Canadian citizen, cancelled the maternal grandmother's Certificate of Custody and Guardianship.

[27] On March 5, 2014, maternal grandmother who had commenced a new application was appointed Kenny's guardian. All parties deposed that a copy of this decision was not available. The maternal grandmother deposes that the paternal grandmother was present during this hearing. In the affidavit of paternal grandfather sworn February 6, 2016, he also deposes that the paternal grandmother was present whereas in the affidavit of Jim Cheng sworn June 16, 2017 he deposes that the order was obtained in the absence of the paternal grandparents.

[28] On March 31, 2014 the parties received a copy of the decision of the court, the "People Mediation Agreement" and the decision states that after mediation and on a voluntary basis, the parties agree that the maternal grandmother shall have temporary guardianship and that the paternal grandparents when they are in Shanghai can visit Kenny every two or three weeks for about 20 days and can visit Kenny's school and inquire about his academic progress as long as they do not affect his school life. The agreement is signed by the mediator and the litigants. Therefore it is clear that paternal grandmother was present during this court process.

[29] The paternal grandparents appealed this decision and again sought to be appointed as guardians of the child. On June 4, 2014 the court confirmed on a final basis, the decision of the local court rendered on March 5, 2014, that the maternal grandmother be appointed guardian of Kenny and dismissed the paternal grandparents' appeal. The decision indicates that the responsibility of guardianship includes physically caring for the person and managing and protecting the person's property. The decision states that in determining guardianship the court considers the guardian's health, economic condition and affiliation. The decision states that in this case, Kenny and his parents had resided with the maternal grandparents prior to his parents' death and thereafter Kenny has lived and been cared for by his maternal grandparents. The decision states that the maternal grandmother possesses the capability to protect, look after, supervise and educate the child and has already performed those responsibilities well.

[30] The paternal grandparents again appealed and sought to disqualify the maternal grandmother's guardianship. In Jim Cheng's affidavit sworn June 16, 2017 he deposes that the maternal grandmother obtained a new court order in the absence of and without notice to the paternal grandmother and without any agent appearing on her behalf based on the misrepresentation by the maternal grandmother that a Canadian court had found it reasonable that the maternal grandmother be the guardian.

[31] Contrary to Mr. Cheng's affidavit, a translated copy of the July 31, 2015 decision of the Shanghai Minhang District People's Court indicates that paternal grandmother is the moving party and that she was represented by counsel and the maternal grandmother was represented by her elder sister. It appears that the maternal grandmother was present but it is unclear from the decision if the paternal grandmother was present in person, although the decision states that the court conducted a trial on the application by the paternal grandmother to disqualify the maternal grandmother's guardianship. There is a clear recitation of paternal grandmother's grounds namely, that the maternal grandmother took the child to Canada without authorization, interrupted his schooling and destabilized his life and her actions interfered with the paternal grandparents' visitation rights. The paternal grandparents also allege that as the maternal grandmother lacks experience in Canada and there is a communication barrier between them that she is no longer fit to be Kenny's guardian.

[32] The court was advised on behalf of the maternal grandmother that the paternal grandparents have applied in Canada for guardianship of Kenny but the "Canadian government" found it reasonable for the maternal grandmother to be the guardian.

[33] The court decision reviews the history of the litigation and the law of guardianship in China and confirms that the court can disqualify a guardian based on the application of a concerned party. In the affidavit of Jim Cheng he deposes that the court granted the decision on the misrepresentation that the Canadian court had found that it was reasonable for the maternal grandmother to be the guardian. However, the actual decision states that the paternal grandmother was applying to disqualify the maternal grandmother's guardianship and does not make any reference to a decision of the Canadian court.

[34] The court explains its decision in dismissing the application of the paternal grandmother as follows:

In this case, the Respondent Wei Ying Yu is the maternal grandmother of Kai Yi Cheng [Kenny], given that Kai Yi Cheng's parents have passed away the Respondent is the preferred guardian of Kai Yi Cheng. Wei Ying Yu is capable and willing to fulfill the obligations of a guardian and she was also appointed by the Neighbourhood Committee in Jiangning Road, Jing'an District, Shanghai city and is the legal guardian of Kai Yi Cheng. According to law, the Applicant [paternal grandmother] can also serve as the guardian of Kai Yi Cheng, however, the parties have discussed and reached an agreement that Wei Yi Cheng will be the guardian of Kai Yi Cheng. Such agreement is the true representation of the intent of the both parties. It is not against the law, it is valid and legally binding. Now the Applicant applies to disqualify Wei Ying Yu's guardianship without presenting evidence that substantiates Wei Ying Yu has not fulfilled the obligations as a guardian or infringed upon the lawful rights and interests of the person under guardianship, therefore, the court finds it difficult to support the Applicant's [paternal grandmother] application. Regarding the nationality of Kai Yi Cheng raised by the Applicant, it is irrelevant to this case and the court will not comment on that. The Applicant asks for the right to visit Kai Yi Cheng, the Respondent shall provide convenience in this regard. If the Respondent refuses to cooperate, the Applicant may have resort to appropriate legal measures.

[35] The maternal grandmother deposed that she was required to return to China at the request of the Chinese court. On February 24, 2016 she attended before the court with respect to some loans, an appraisal and sale of the property owned by the child's father. It is estimated by the paternal family that the property in China is valued at about 3.5 million Canadian dollars. A translated transcript of the discussion was attached to the affidavit of the maternal grandmother sworn June 6, 2016 as well as a notice to the paternal grandparents in a local newspaper advising them that if there is a dispute they can appeal within 6 months and if no dispute is filed the property will be auctioned in accordance with the law. There is no evidence presented as to whether or not the paternal grandparents have filed an appeal or are participating in this action.

4. History of Court Proceedings in Ontario

[36] The paternal grandparents commenced this Application on June 30, 2015 and on the same day brought a Notice of Motion, without notice seeking an order for the police to locate and apprehend the child, custody, non-removal by the maternal grandmother and for an order that the Toronto and Peel police services be authorized to provide them with the child's address. Based on the number of deficiencies and concerns raised by the court, the motion was adjourned.

[37] On August 11, 2015 counsel for the paternal grandparents attended court and brought an oral motion for an order, pursuant to section 39 of the Children's Law Reform Act, for the release of information about the child's whereabouts from the children's aid society, police and school boards. As this motion was without notice to the affected third parties, it was not dealt with by the court. Justice Carole Curtis, who was assigned as the case management judge, also requested further evidence with respect to the child's residence, court orders in China and up to date information regarding the child.

[38] On September 18, 2015 the motion, on notice to third parties, for the release of information about the whereabouts of the child was granted.

[39] On November 26, 2015 counsel for the paternal grandparents attended court and advised that the maternal grandmother was served on October 26th. The maternal grandmother was not present. Justice Curtis made an order that the maternal grandmother not remove the child from Toronto and that she come to court on the next court date. The paternal grandparents were required to send the maternal grandmother a copy of the endorsement by regular and registered mail and personally serve her with the issued order.

[40] The affidavit of service by Nephat Sizib, a paralegal working in the office of counsel for the paternal grandparents, deposes that on October 26, 2015 the Application, Notice of Motion and supporting documents were left with Patrick Kwan at 34 Pineway Blvd. Toronto, who resided at this address and that he mailed another copy to the maternal grandmother at the same address. This is significant as the maternal grandmother deposes that she never received the Application, Notice of Motion and supporting affidavits. Further, the maternal grandmother filed proof that she had already moved and relocated to Richmond Hill on June 25th, 2015. I have been unable to locate an affidavit of service confirming that the endorsement and order of November 26th, 2015 were ever mailed or served on the maternal grandmother. Nor is there any reference to serving the maternal grandmother in the affidavits of the paternal grandfather or paternal grandmother.

[41] There is an affidavit of service by the same paralegal that was sworn on February 7, 2016 that he sent an affidavit of the paternal grandfather sworn February 7, 2016 by courier to 34 Pineway Blvd., Toronto. The courier slip simply confirms that the legal documents were picked up from counsel's office and that no signature was required upon delivery.

[42] When the case returned to court on February 10, 2016, the maternal grandmother was not present and had not served any responding materials. Justice Curtis noted that although the maternal grandmother could be noted in default in view of the seriousness of the relief claimed the court wanted her input and ordered her to attend. An order was made for access to the child by the paternal grandparents every Saturday from noon to 1:00 p.m. The paternal grandparents were again ordered to send the maternal grandmother a copy of the endorsement by regular and registered mail and to serve her personally with the issued order. I have been unable to locate any affidavit of service confirming this was done. Nor again is there any reference to serving the maternal grandmother in the affidavits of the paternal grandfather or paternal grandmother.

[43] On March 31, 2016 counsel who had been retained by the maternal grandmother attended court and was granted an extension to file responding materials. On consent the Office of the Children's Lawyer was appointed.

[44] The maternal grandmother's affidavit sworn April 22, 2016 deposes that she was never served as she had already moved from 34 Pineway Blvd. when the documents were left with Patrick Kwon and that she did not find out about the court proceedings until February 2016 when she was already in China. She deposes that Mr. Kwon who was also a tenant in the home never contacted her. In February 2016 she received information about the court proceeding from her current landlady and friend when a former neighbour through a mutual acquaintance contacted her landlady about the court documents. Her friend then on the maternal grandmother's instructions contacted Haiyun Wang, a lawyer who the maternal grandmother had previously consulted. The maternal grandmother retained Ms Wang and shortly thereafter returned with Kenny to Canada.

[45] After a case conference was held regarding a travel motion and next steps in the case, a date was set for a contested motion.

[46] On June 16 and 17th, 2016 Justice Curtis heard motions by the paternal grandparents for custody and access to Kenny and a motion by the maternal grandmother to travel with Kenny to China from June 26 to August 18th. Tammy Law had been appointed as counsel for Kenny, filed an affidavit from her legal assistant with respect to the child's views and supported the motion for him to travel with his the maternal grandmother to China.

[47] For oral reasons, the prior non-removal orders were set aside and the travel request was granted. The court held that the maternal grandmother must return to Canada and that the Ontario courts have jurisdiction over the child. The endorsement states that child needed some peace, stability and certainty and an order was made that the paternal grandparents have no access before or during the trip to China. Access was to be addressed again upon the child's return from China. The endorsement further states that if access was to be ordered then the court would expect clauses that the paternal grandparents not discuss any of the issues with Kenny about the litigation, the maternal grandmother, the property of his parents and his parents unless the child initiates the conversation. The endorsement further states that the paternal grandparents should consider obtaining some counselling about parenting techniques to help them deal with Kenny's recent history and difficulties. The endorsement clearly states that the decision with respect to access is not a determination that access will never be in the child's best interests but only that for the present the child needed a break from this pressure.

[48] Although a case conference was scheduled for October 19, 2016 on consent it was adjourned several times and the issue of costs for the contested motions was dealt with.

[49] A case conference was held on April 25, 2017 before Justice Curtis and the issues of custody, access, the child's views and preferences, a summary judgment motion, an assessment and next steps were canvassed. The endorsement notes that a summary judgment motion may be brought by either counsel for the maternal grandmother or the child. A timetable for the serving and filing of summary judgment motion materials was set namely, the moving party by May 26th, the responding party by June 16 and any reply by June 26th. The summary judgment motion was scheduled for June 30th.

[50] On June 30th, on consent counsel for the paternal grandparents was permitted to file his Factum and updated 35.1 affidavits from the paternal grandparents subject to the court subsequently ruling on the admissibility of the affidavits and the weight, if any, the court would attribute to the affidavits. After hearing oral argument, my decision was reserved.

[51] All counsel agreed that the court should review the previous affidavits filed in addition to the affidavits filed in support of the summary judgment motion.

[52] I have therefore reviewed all of the pleadings and affidavits filed in the three volumes in the Continuing Record. Further, I have reviewed the three volumes of the summary judgment motion record filed by counsel for the child, including the business records and the reply affidavit, the factum and brief of authorities. On behalf of the maternal grandmother I have reviewed, in addition to her affidavits, her factum and book of authorities. On behalf of the paternal grandparents in addition to the affidavits filed in support of their position, I have reviewed their factum, book of authorities and updated 35.1 affidavits.

5. Legal Considerations

5.1 Summary Judgment

[53] Subrule 16 of the Family Law Rules allows a party to seek summary judgment without a trial on all or part of a claim after the respondent has served an Answer or after the time for serving an Answer has expired.

[54] Subrule 16 (4) requires that the party making the motion serve an affidavit or other evidence that sets out the specific facts showing that there is no genuine issue requiring a trial.

[55] Subrule 16 (4.1) provides that the responding party must also set out in an affidavit or other evidence specific facts showing that there is a genuine issue requiring a trial. The responding party cannot make mere allegations or denials of the evidence.

[56] Subrule 16 (6) is mandatory that is, if the court concludes that there is no genuine issue requiring a trial of a claim, the court shall make a final order accordingly.

[57] On a motion for summary judgment, the court is required to take a hard look at the merits of the case to determine if there is a genuine issue requiring a trial. The onus is on the moving party to show there is no genuine issue requiring a trial.

[58] In assessing whether or not a moving party has met its obligation of showing there is no genuine issue requiring a trial, courts have equated that phrase with "no chance of success", "when the outcome is a foregone conclusion", "plain and obvious that the action cannot succeed", and "where there is no realistic possibility of an outcome than that sought by the applicant".

[59] Summary judgment should proceed with caution. However, it is not limited or granted only in the clearest of cases. In Hyrniak v. Mauldin the court makes it clear that the summary judgment rules must be interpreted broadly, favouring proportionality and fair access to affordable, timely and just adjudication of claims.

[60] Upon the moving party establishing on a balance of probabilities that there is no genuine issue requiring a trial, the responding party, must provide evidence of specific facts showing that there is a genuine issue requiring a trial and that his claim has a real chance of success. A summary judgment motion cannot be defeated by mere allegations, blanket denials or self-serving affidavits not supported by specific facts showing that there is a genuine issue requiring a trial. In determining if there is sufficient evidence led by the responding party, the question is not whether there is any evidence to support the position, but whether the evidence is sufficient to support a trial.

[61] In determining whether or not there is a triable issue, the court should not be asked to speculate as to possible evidence or elaboration. The court must rely on and evaluate the sufficiency of the evidence as disclosed by the affidavits.

[62] Although the court can rely on hearsay, subrule 16 (5) provides a stricter rule with respect to hearsay than subrule 14 (19) motions, namely that if a party's evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party. This rule is permissive in nature and provides discretion to the court as to whether or not to admit the hearsay evidence and attach whatever weight to it, if any, that the court deems appropriate.

[63] The Supreme Court of Canada, in the case of Hyrniak v. Mauldin, has clarified the process of applying the expanded summary judgment rule. The court held that the judge should first determine if there is a genuine issue requiring a trial based on the evidence before the court, without using the new fact-finding powers. There will be no genuine issue for trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.

[64] If there appears to be genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers. These new powers involve the weighing of evidence, evaluating credibility, drawing inferences and may include receiving oral evidence on the motion. The use of the expanded powers is not a full trial on the merits but are designed to determine if there is a genuine issue requiring a trial.

[65] When dealing with a summary judgment motion, the court must also consider Rule 2 of the Family Law Rules to ensure that cases are dealt with justly by ensuring the procedure is fair to all parties, saves time and expense and that cases are dealt with in ways that are appropriate to its importance and complexity and giving appropriate court resources to the case while taking into consideration the need to give resources to other cases. A summary judgment motion is a tool that can contain and control a child's drift in litigation.

5.2 Custody and Access

[66] In this case in the context of the summary judgment motion, the court is required to consider what custody and access order is in the child's best interests. Section 21 of the Children's Law Reform Act states that:

A parent of a child or any other person, including a grandparent, may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.

[67] This section in its present form was amended to include a specific reference to grandparent access between the time that the paternal grandparents filed their application and the hearing date of this motion. However, the amendment does not give grandparents a presumptive legal right to custody or access to their grandchildren. Custody and access remain to be determined on the basis of the best interests of children.

[68] Section 24 (2) of the Children's Law Reform Act sets out the criteria for assessing both custody and access based on a child's best interests.

[69] Section 24 reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

5.3 Access

[70] Although access is not an absolute right and will only be ordered where there is a benefit to the child, the party who seeks to reduce normal access will have to justify that position. A termination of access should only be ordered in extreme circumstances.

[71] In the case of V.S.J. v. L.J.G. Justice Blishen reviewed the factors that have led courts to terminate access. Although many of the factors are not applicable to the facts of this case, they are useful as an indication of the types of situations that have caused a termination of access. The factors are as follows:

1. Long term harassment and harmful behaviours towards the custodial parent causing that parent and the child stress and or fear.

2. History of violence; unpredictable, uncontrollable behaviour; alcohol, drug abuse which has been witnessed by the child and/or presents a risk to the child's safety and well being.

3. Extreme parental alienation which has resulted in changes of custody and, at times, no access orders to the former custodial parent.

4. Ongoing severe denigration of the other parent.

5. Lack of relationship or attachment between noncustodial parent and child.

6. Neglect or abuse to a child on the access visits.

7. Older children's wishes and preferences to terminate access.

[72] As noted by Justice Blishen, none of the above cited cases deal with one factor alone. In every case, there are a multitude of factors which must be carefully considered and weighed in determining whether to terminate access is in the best interests of the child.

[73] While I appreciate that the position of child's counsel is not to terminate access but to leave the choice of access up to Kenny, at the present time based on the evidence being presented on his behalf it is clear that he would chose not to have access and from the paternal grandparents' perspective such an order would amount to a termination of access.

5.4 Grandparent Access

[74] In addition to the general criteria with respect to custody and access, in this case there is the additional aspect of grandparent access. The leading case with respect to grandparent access is the Ontario Court of Appeal case of Chapman v. Chapman. Although that case dealt with the attempt of an estranged grandmother to obtain access to her grandchildren over the objections of the children's parents, there are principles that are applicable to this case.

[75] Justice Abella, as she then was, explained that the case raised the important issue about relationships between children and their extended family and in particular, who decides its parameters. Justice Abella explained that, "No one disputes that the purpose of access is to preserve a child's positive relationship in as constructive a manner as possible." "The test, however, is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court."

[76] In determining that the parents had the authority to refuse access, the following factors were outlined and considered:

1. Whether a positive relationship between the grandmother and child already existed?

2. Whether the parents' decision imperilled the positive grandparent-grandchild relationship?

3. Whether or not the parent acted arbitrarily?

[77] In addition, in the case of Giansante v. Dichiara, Justice Nelson stated that the general rule of deference to the autonomy of parents to decide issues of access, as espoused in the Chapman v. Chapman case, may not be as strong when one of the parents has died and the deceased relatives seek access against the wishes of the surviving parent. In such a case the court may be less deferential to the surviving parent's wishes in order to preserve the child's relationship with the lost family member.

[78] I have considered these general principles and factors in relation to the position of counsel on behalf of Kenny to either permit any access to the paternal grandparents to be in his discretion or for very limited contact.

6. Evidentiary Issues

6.1 Motion to Strike Portions of the Affidavit of Jim Cheng Sworn June 16, 2017 and Weight to be Attributed to the Affidavits of the Applicants and the Other Supporting Affidavits

[79] Ms Law, counsel for the child served and filed a Motion to strike over 50 paragraphs of the affidavit of Jim Cheng as set out in Schedule "C" of the Notice of Motion but submitted that in view of the court's limited time and resources and importance of the matter being resolved quickly she would be content with the removal of the portions identified in Schedule "A" on the basis that with respect to the remainder of the affidavit the court could discern between facts, opinions and argument and would be in a position to weigh the evidence accordingly.

[80] In order to appreciate the context of the motion, it is important to note that in response to the summary judgment motion, the paternal grandfather and paternal grandmother filed almost identical affidavits of 10 short paragraphs that state that their first language is Mandarin and they require an interpreter to translate written or spoken English and that their son Jim Cheng has explained and orally translated the summary judgment motion materials and the maternal grandmother's affidavit materials. They further depose that they have thoroughly reviewed the affidavit of Jim Cheng together with the 26 exhibits attached to his affidavit and that Jim Cheng has orally translated it in complete detail. They further depose that they adopt his affidavit as their own evidence and that his affidavit accurately reflects their own direct and indirect knowledge of the relevant events.

[81] The manner of presenting evidence in this fashion is extremely problematic. Jim Cheng has a Master's Degree in computer science and deposes that as his parents cannot afford a translator and since he is fluently bilingual and has his own detailed knowledge of the events he has sworn his affidavit to put forward his own evidence and that of his parents. He deposes that he has verbally translated the contents of his affidavit to them and they adopt it as being accurate.

[82] On behalf of the paternal grandparents it is submitted that in view of the language barrier it was reasonable and necessary that the paternal grandparents use their son, Jim Cheng, as an intermediary in the proceeding and for them to present their evidence on the summary judgment motion as they have done. It is submitted that the paternal grandparents have adopted Jim Cheng affidavit as their own evidence and that their evidence has been presented in accordance with Family Law Rule 2(3) and with the principal of proportionality.

[83] Jim Cheng is not a qualified interpreter. Mr. Cheng holds a post-secondary degree in computer science and does not have the educational background, qualifications, training or experience to accurately translate from English to Chinese and vice versa. He is an interested party and has no knowledge of the legal process. There are no details provided as to the circumstances surrounding his translation of the extensive materials filed on his summary judgment motion.

[84] Both of the paternal grandparents have previously sworn affidavits in English. The paternal grandfather swore five affidavits and paternal grandmother one affidavit on the temporary motions. None of those affidavits indicate that the contents were translated for them which now calls into question how those affidavits were prepared. On the other hand, if those affidavits were translated for them there is no explanation as to why the paternal grandparents could afford an interpreter for the affidavits in support of temporary motions but not for the summary judgment motion. Even if Jim Cheng was able to assist his parents in translating it is not clear why they could not prepare their own affidavits rather than Mr. Cheng preparing a 36 page affidavit with 26 exhibits attached in order to avoid the concerns raised by counsel for the children's lawyer. I do not accept the submission of the paternal grandparents' counsel that this is in keeping with subrule 2(3) of the Family Law Rule. Relying on such an affidavit on a summary judgment motion is not a fair procedure and only increases time and expense.

[85] I will now turn to the specific objections made to Jim Cheng's affidavit.

a) Argumentative

[86] It is submitted that it is inappropriate for a witness to give evidence, whether opinion or otherwise, that constitutes argument of the party's position on the issues to be decided by the court.

[87] In response it is submitted by applicants' counsel that the line between fact and opinion and arguments is not clear and that sometimes opinions and arguments are part of the story telling process and that in any event, the court is able to weigh the evidence appropriately.

[88] The affidavit of Mr. Cheng is replete with argument as opposed to evidence. It is trite law that it is for counsel not the deponent to make legal arguments. As an example, paragraph 64 (z) is quoted which states:

There is a curious gap. Mr. To does not mention anything about the disappearance of Kenny as a result of the Respondent's departure from China, which disappearance caused Kenny's paternal relatives, including his grandparents, to take steps to locate him, both in China and Canada. Mr. To fails to mention that the within application by the paternal grandparents was initiated because, upon their locating Kenny in Canada, the Respondent maternal grandmother was unwilling to cooperate with the Toronto CAS and the Peel Regional Police in re-connecting Kenny with this paternal grandparents and other members of his family in Toronto. No explanation is given as to why Mr. To completely ignored the issue of how the Respondent's lack of cooperation was tied to her greater agenda of cutting Kenny off from any contact with members of his father's extended family. If the capacity of someone to be a custodial parent is partly dependent upon that person's ability to facilitate a child's access to important people in his life and history, then the Respondent's capacity to be an acceptable "custodial parent" for Kenny is thrown into doubt by her alienating him from his father's side of the family. Mr. To is oblivious to how the Respondent's conduct in both strictly confining Kenny to her control and alienating him from his father's relatives in Canada results in Kenny's so-called views and preferences becoming improperly skewed by the Respondent's motivations and agenda.

[89] I agree with the submissions of child's counsel that the style of the paragraph quoted above is consistently repeated throughout the affidavit. There is little or no evidence but simply many conclusions. Although it is open and appropriate for counsel to make the arguments that are contained in this paragraph it is not appropriate for such arguments to be in an affidavit as simply put, it is not evidence. Affidavits should be properly drafted and it is not an acceptable response to simply leave such paragraphs in an affidavit and that the judge should then consider what weight should be attributed to the impugned paragraph.

b) Hearsay and Double Hearsay

[90] It is submitted by counsel for the child that the affidavit of Jim Cheng is replete with hearsay and double hearsay that describe in detail events at which he was not present.

[91] It is submitted on behalf of the paternal grandparents that it is permissible for hearsay to be included a motion, including a summary judgment motion, in accordance with Family Law Rule 16 (19) as long as the source of the information is identified by name and the affiant states that he believes the information to be true. Rule 16 (5) allows the court hearing a summary judgment motion to draw an adverse inference against the party who submits hearsay evidence. It is further submitted that to the extent that the affidavit includes hearsay it is appropriate to be used to explain subsequent behaviour or to establish uncontested facts or non-material facts.

[92] Although I agree that hearsay statements may be included to explain subsequent behaviour, those statements are not actual hearsay as they are not introduced for their truth. I also accept that some uncontested facts or non-material facts can be proven by hearsay.

[93] However, I am of the view that hearsay evidence offered for its truth on a summary judgment motion should only be admitted if it meets the criteria of necessity and reliability and that the evidence on a summary judgment motion should withstand the rigours of a trial.

[94] The role of a judge on a summary judgment motion is to evaluate the quality of the evidence in order to fairly resolve the dispute. The judge must analyse the issues in the case and identify what are the disputed facts and whether or not those facts are material to the resolution of the matter. The quality of the evidence proffered to prove a material fact must be carefully scrutinized and a court should generally demand evidence that is solid, credible and in most cases from first-hand knowledge.

[95] In this case, not only is the affidavit of Mr. Cheng replete of hearsay on contested and material facts, it is impossible to distinguish between which events Mr. Cheng has actual information about and which events were merely described to him and who described the events.

[96] As an example of such a paragraph that child's counsel seeks to strike is paragraph 64 (jj) which states as follows:

..In the period immediately following the accident in which Kenny was injured and his parents were killed, the Respondent maternal grandmother and Kenny's maternal grandfather both moved into the house of Kenny's parents. In that house there was a safe in which my brother, J.J. stored important documents, valuable items, banking information, gold bars, jewellery etc. I know what was stored in the safe because J.J. told me about it. After the accident, the Applicants were unable to get to Shanghai for a week, due to their need to obtain passports and emergency visas (their existing passports had expired). Upon arriving in Shanghai about a week after the accident, the Applicants went to J.J.'s house and noticed that the safe itself was still there but that it was unlocked and empty of items. Initially, they asked the maternal grandfather what had happened to the contents of the safe. He said not to worry, that the contents of the safe has been stored somewhere else. Within a few days, the Applicants asked for an opportunity to make a list of the items that had been removed from the safe. However, the Respondent maternal grandmother said that the safe had been empty and nothing had been removed by anyone. About three months later, when the Applicant Yi Qin Hu returned to China with the intention of taking Kenny back to Canada for medical rehabilitation at the Toronto Children's Hospital. At that point, the Respondent maternal grandmother accused the Applicant Yi Qin Hu of stealing the contents of the safe. The Respondent also said that Kenny had witnessed her theft. A local government official, a retired judge asked Kenny when he saw this, Kenny said that he saw this right after the accident. When the retired judge reminded Kenny that he was in a coma in the hospital right after the accident, and that it would have been impossible for him to see anything, Kenny was speechless. The retired judge then counselled Kenny on the need to be honest and on the importance of telling the truth. Yi Qin Hu was in the room while Kenny was interviewed by the retired judge. The Respondent maternal grandmother subsequently brought Kenny into Canada, and to do so she herself needed Kenny's Canadian passport, which I understand was kept in J.J.'s safe in his house…

[97] It is unclear who the narrator is but what is clear is that Jim Cheng was not present and he is repeating information apparently told to him by his mother. All of the statements attributed to the retired judge and Kenny are double hearsay and are proffered to prove that the maternal grandmother had stolen items from the safe and that Kenny lied about it. This is a material fact in view of the position of the paternal grandparents that the maternal grandmother is unfit to care for Kenny and is only interested in obtaining the funds that he is entitled to inherit as a result of his parents' death. There is no explanation as to why evidence of this event could not be obtained first hand from the retired judge.

[98] There are other examples of hearsay being proffered where it is unclear as to the source or who witnessed the event. For example, Mr. Cheng describes an incident when the maternal grandmother went to see Kenny at school and this evidence is adopted by the paternal grandfather who was not even present. Mr. Cheng was also not present. As Kenny's pre-existing relationship with his paternal grandparents is a contested and material fact, such evidence should have been from first-hand knowledge.

[99] There are many paragraphs describing what occurred at the various court attendances in China. As previously outlined, some of the information is contradicted in the paternal grandfather's prior affidavit and some of the information is simply not accurate. The source of the information is not identified.

[100] Although I would have struck all of the hearsay statements that relate to contested materials facts, child's counsel has only requested that those statements identified in Schedule "A" be struck. As a result it would be unfair to the Applicants for the court to now strike all of the hearsay statements. I therefore strike only those statements requested by child's counsel.

[101] However, the Applicants could have obtained evidence first-hand information such as an affidavit from the retired judge who allegedly interviewed Kenny or Kenny's teachers in China that could have corroborated the incidents described in Mr. Cheng's affidavit. Further, the Applicants could have obtained an affidavit from their lawyer in China with respect to the court proceedings in China. I note that an affidavit from counsel in China was previously obtained and attached to one of the paternal grandfather's affidavits to explain the status of the proceedings in China.

[102] I place no weight on the hearsay statements in Jim Cheng's affidavit and draw an adverse inference against the Applicants with respect to the hearsay and double and sometimes even triple hearsay contained in the affidavit of Jim Cheng that relate to a material fact and which are relied upon in response to this summary judgment motion.

c) Foreign Law

[103] It is submitted by child's counsel that the affidavit of Jim Cheng contains many paragraphs with respect to the law in China and as Mr. Cheng is not qualified to express an opinion about foreign law those paragraphs should be struck.

[104] Although not directly responded to by counsel for the Applicants it was his general submission that a non-expert can give their opinion on issues if they possess personal knowledge of the observed facts and if they are in a better position than the trier of fact to draw inferences.

[105] The proof of foreign law is treated as a question of fact but to be proven in evidence by expert evidence generally by legal practitioners or scholars knowledgeable about the law of the foreign jurisdictions.

[106] Jim Cheng is not qualified to provide evidence or his opinion about Chinese law. All of the references as to his interpretation or opinion about Chinese law are struck.

d) Inflammatory and Scandalous Statements

[107] It is submitted by child's counsel that subrule 1(8.2) of the Family Law Rules allows the court to strike out "all of part of any documents that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of power."

[108] It is submitted that there are multiple examples of inflammatory statements in Jim Cheng's affidavit directed at the maternal grandmother and at Glory To, who acted as a clinical assist to Ms Law in this matter.

[109] It is further submitted that the statements have little factual foundation and are incapable of a factual response as they are generally unfounded attacks of a personal nature.

[110] There is no doubt that the paragraphs complained of contain language that is unnecessary and unhelpful to the position of the Applicants. In reading the affidavit of Jim Cheng in particular it appears to be drafted by him without the oversight of counsel. It is unfortunate that the Applicants' counsel who should be drafting his clients' affidavits and the affidavit in support of his clients' position did not caution them against using language that only further intensifies the conflict in an already high conflict case.

[111] However, I see no need to strike the language complained about. But I put no weight on the hyperbole used and do not draw an adverse inference against child's counsel or the maternal grandmother for not responding to such personal attacks.

e) Speculation or Supposition

[112] It is submitted by child's counsel that statements that speculate or make suppositions as to the existence of facts outside of the scope of the deponent's information or knowledge are impermissible in an affidavit and should be struck.

[113] It is submitted that the affidavit of Jim Cheng contain multiple statements clearly outside of his knowledge. He frequently speculates about the motives of the maternal grandmother and the child and the reasons behind facts to which he has no knowledge. He speculated or opines about the maternal grandmother alienating the child without himself having the qualifications to make such statements and without there being any evidence of behaviour that has been determined to be alienating.

[114] Applicants' counsel's general submission is that the court should permit these statements and then determine what weight to attribute to them.

[115] Child's counsel refers to paragraph 49 of Mr. Cheng's affidavit as one such example:

The Applicants believe, and I understand them to be telling the truth, that the Respondent has in fact been using Kenny's assets freely for her own personal expenditures, and that this is how she has been able to live with Kenny Cheng in Canada, notwithstanding her meagre Chinese pension, which becomes even more meagre when converted into Canadian dollars from Chines yuan. (The conversion rate is about 5 Chinese yuan to 1 Canadian dollar).

[116] The Applicants, through Mr. Cheng, in this paragraph speculate that the maternal grandmother is "freely" using Kenny's assets, speculate about how she is able to live in Canada and speculate about her "meagre" pension. There is no evidence tendered to support any of these statements. There is no explanation as to how the Applicants know any of these facts.

[117] Generally, such statements are dealt with by the court by pointing out that on a summary judgment motion the court must rely on and evaluate the sufficiency of the evidence adduced in the affidavit material submitted on a motion and that the court should not be asked to speculate about possible further evidence that could potentially be available at trial and that such a response is not a sufficient response to a summary judgment motion.

[118] Counsel for the child is only requesting that the court strike the above noted paragraph and that the court place no weight on similar paragraphs that contain such speculation. The Applicants have made similar allegations about the maternal grandmother freely using the child's inheritance in the court proceedings in China and those allegations were found to be unfounded due to a lack of any evidence. I agree with the submissions of child's counsel that this particular paragraph should be struck as the Applicants have been on notice that they are required to provide evidence to support their allegations and such an allegation is particularly hurtful to the maternal grandmother.

[119] Mr. Cheng makes further assertions for which for which he provides no evidence as follows:

a) Kenny's father owned two properties that the maternal grandmother transferred into her own name;

b) the value of Kenny's assets are valued at $3.5 million without any information as to what these assets are or where they are held;

c) the maternal grandmother lied about collecting the proceeds of the personal injury litigation in China. With respect to this allegation he produced an untranslated copy of a purported court decision from China;

d) the paternal grandparents had a close relationship with Kenny, despite their own evidence that they only visited one or twice a year;

e) Kenny is not being well cared for by the maternal grandmother;

f) the maternal grandparents is alienating Kenny from the paternal grandparents;

g) Kenny is being "poisoned" by the maternal grandmother;

h) Kenny is being coached by the maternal grandmother about what to say and do; and

i) assertions about the feelings and motives of the maternal grandmother.

[120] I place no weight on any of these assertions, allegations and speculations. The Applicants in response to a summary judgment motion are required to put their best foot forward and not ask the court to speculate about further or better evidence that may be available after cross-examination and a trial.

f) Settlement Privilege

[121] Subrule 17 (23) of the Family Law Rules states that no evidence prepared for a settlement conference and no statements made at a settlement conference shall be disclosed to any other judge, except in a settlement agreement or order.

[122] This rule has been held to apply to case conferences. As noted in the case of Benet v. Benet, it is common for the parties and the presiding judge to enter into settlement discussions at a case conference during which judicial opinion or suggestions may be offered. If what was discussed was later opened up it would inhibit and negatively impact on the settlement discussions.

[123] It is submitted by child's counsel that the affidavit of Mr. Cheng, paragraphs 15, 18, 19 and 52 refer to statements made at the case conference before Justice Curtis on April 25, 2017.

[124] Counsel for the Applicants did not respond to this issue although in his factum he also refers to statements made at the case conference which is also impermissible.

[125] All of these paragraphs in Mr. Cheng's affidavit that refer to statements made at the case conference will be struck and I am disregarding the reference in the Applicants' factum that also refer to statements made at the case conference.

g) Disregard and No Weight to Other Affidavits

[126] It is submitted by child's counsel that the court should either disregard or give little weight to the affidavits of Veronica Jessie Cheng and Jason Jia Shen Cheng sworn June 15, 2017 and the affidavits of the Applicants both sworn on June 16, 2017. Generally for the same reasons outlined in greater detail with respect to the affidavit of Jim Cheng.

[127] With respect to the brief affidavits of the Applicants, they do not contain any evidence except an explanation as to why their son Jim Cheng is preparing a detailed affidavit and they adopt his affidavit as their evidence in response to the summary judgment motion. I find that this manner of preparing responding materials to be very unsatisfactory. The parties on a motion should prepare their own affidavit and not rely on a non-party's affidavit regardless of any language issues. All of the concerns and shortcomings of the affidavit of Jim Cheng are therefore also attributable to the Applicants.

[128] Jessica Cheng and Jason Cheng are the Applicants' grandchildren. To the extent that their affidavit contain hearsay about material issues, such as the Applicants' contact and relationship with Kenny that is second hand knowledge, I place no weight on that evidence. However, their own contact with Kenny and their personal observations are relevant and admissible.

h) Summary

[129] In summary, the motion to strike portions of the affidavit of Jim Cheng sworn June 26, 2017 containing hearsay, argument, unqualified statements regarding foreign law and statements subject to settlement privilege is granted.

[130] For the reasons given, I place no weight on the further hearsay statements relating to contested materials facts, opinion evidence, statements with respect to foreign law, speculation or supposition and any inflammatory statements.

6.2 Admissibility of Applicants' 35.1 Affidavits

[131] At the outset of the summary judgment motion counsel for the Applicants sought to file updated 35.1 affidavits on behalf of the Applicants. There was no explanation as to why these affidavits were now being produced. The Applicants in support of their Application had previously filed their 35.1 affidavits.

[132] It is clear to the court, as submitted by child's counsel, that this was an attempt by the Applicants to rectify the issues raised by child's counsel in her factum and reply affidavit and also deprived child's counsel of the opportunity to reply to the contents of the 35.1 affidavits. In effect, the Applicants were being permitted surreply by the admission of these affidavits.

[133] Despite the unfairness of such late filing, I am prepared to admit the affidavits as it is important for the court to have as much information as possible in determining the issues of custody and access.

[134] However, having reviewed the affidavits they are not proper 35.1 affidavits but are being used as another platform to make unfounded allegations against the maternal grandmother. For example, in the section requesting that a party outline their knowledge of violence and abuse under section 24 (4) of the Children's Law Reform Act both of the paternal grandparents outline in 4.5 pages allegations regarding the maternal grandmother's actions in China with respect to the property issues and alleged violation of the court orders from China. I place no weight on the allegations as outlined in these affidavits. There is certainly no allegation of "violence and abuse" against the child or any other person.

[135] The affidavits are also lacking in any insight into how the paternal grandparents would attempt to repair the relationship between themselves and the child or how they would propose to transition the child living with them when at present he is refusing to see them.

7. Discussion

7.1 Should the Summary Judgment Motion be Dismissed on the Basis that the Issues of Custody and Access Should Not be Severed from the Parties' Competing Claims for Guardianship?

[136] It is submitted by the Applicants that child's counsel is deliberating separating the issues of custody and access from the guardianship claims when these two issues are inseparable in Chinese law. It is submitted that this could lead to the maternal grandmother gaining control over the child's assets and property in China and using them for her own benefit and with no accountability. It is further submitted that the Office of the Children's Lawyer has only recently taken an interest in the competing claims for guardianship of property and has been oblivious to the potential or actual interrelationship between the custody issue and the guardianship of property claims.

[137] I note the obvious that the Chinese court, despite several attempts by the paternal grandparents to overturn, appeal and vary orders, has already granted a final order of guardianship to the maternal grandmother and is in the process of dealing with the property of the child's deceased father located in China.

[138] With respect to the merits of this argument, the paternal grandparents in their Application requested, in addition to custody and other relief, guardianship of the child's property.

[139] Section 24 (2) sets out the factors to be considered. The ability of a caregiver to manage the property of a minor child is not a factor to be considered in determining the best interests of a child.

[140] The Children's Law Reform Act contains separate provisions with respect to the guardianship of property. Section 49 sets out the criteria to be applied in determining an application for guardianship of property that includes the ability of the proposed guardian to manage property, the merits of any management plan and the views and preferences of the child.

[141] It is submitted that in order for the Office of the Children's Lawyer to take a position on the guardianship of property application by both parties, it requires a detailed list of the assets Kenny is entitled to receive from his father's estate, a detailed management plan setting out how the assets are to be managed and evidence that either party can afford to post a bond.

[142] In accordance with the case law and section 55 of the Children's Law Reform Act the court cannot appoint a guardian of the property of a child, without a detailed management plan and if the guardian is not a parent, proof must be submitted of the ability of a party to post a bond, with or without sureties, payable to the child in an amount that the court considers appropriate. Neither of these requirements can be dispensed with.

[143] Further, the Ontario Court of Justice has limited jurisdiction in guardianship applications and cannot provide a guardian with the ability to use any funds only to hold and invest such funds. As such if a guardian needs to withdraw funds, authorization must be obtained from the Superior Court of Justice and that court may be the more appropriate forum for any guardianship application.

[144] In this case, there is a further complication as the paternal grandparents are the defendants in a fraudulent conveyance action in the Superior Court of Justice, in which Kenny by his litigation guardian, the maternal grandmother, alleges that the paternal grandparents improperly sold property owned by Kenny's deceased father. It is the position of the Office of the Children's Lawyer that until that action is determined, it would be improper to appoint the paternal grandparents as guardians of the child's property.

[145] In conclusion, despite their Application being commenced over 2 years ago, the paternal grandparents have not properly served the Office of the Children's Lawyer with the required documents to make a claim to be guardians of the child's property, any such claim cannot be determined on its merits until there is a determination of the outstanding fraudulent conveyance lawsuit against them and in law the issues of custody and guardianship are separate issues. Accordingly, there is no basis for this summary judgment motion dealing with custody and access not being heard on its merits.

7.2 Is There a Triable Issue with Respect to Custody?

[146] It is submitted by child's counsel and supported by the maternal grandmother that there is overwhelming evidence that the maternal grandmother should be granted custody, that such an order is in accordance with the views and preferences of the child and that there is no genuine issue requiring a trial of this issue.

[147] It is submitted by counsel for the paternal grandparents that there are material facts in dispute that require cross-examination and therefore a trial is required. Specifically it is submitted that the issues requiring a trial are:

a) Whether or not the paternal grandparents and paternal relatives had a positive relationship with Kenny prior to the death of his parents?

b) If so, has that positive relationship been damaged or sabotaged by the maternal grandmother though a pattern of a protracted and deceptive pattern of conduct?

c) If the child has been cut off or alienated from his paternal grandparents and paternal family, is the Office of the Children's Lawyer correct in summarily concluding after a few brief interviews of the child that his views and preferences are reasonably ascertainable?

d) Did the maternal grandmother obtain orders on false pretences and misrepresentation in China and did the Chinese court have jurisdiction to issue an order on July 31, 2015 in the absence of paternal grandmother and when all parties were in Ontario?

e) Did the maternal grandmother act contrary to Kenny's best interests in disregarding the paternal grandparents' entitlement to access in accordance with their mediated agreement by surreptitiously removing the child and relocating to Canada and the ignoring the orders of Justice Curtis?

f) Is there a danger that the maternal grandmother if granted custody will use that order to take control over the child's assets and property in China for her own benefit and without any accountability?

[148] The issues raised as "material issues" that require a trial with respect to the maternal grandmother deceiving the courts in China or improperly using the child's property are simply stated as a fact without a scintilla of evidence. In responding to a summary judgment motion the responding party is required to provide some evidence that their chances at trial would be better than on the motion. The paternal grandparents repeatedly make these bald statements without any proof. The issues regarding the guardianship of the property in China were already determined through the Chinese courts where these same arguments were made and rejected. Having lost all of their appeals in the Chinese courts, it appears that the paternal grandparents are now attempting to use this court process to obtain a contrary order that they can somehow use in China. The issues regarding the court proceedings in China and the property in china are not relevant or material and do not require a trial.

[149] With respect to the prior existing relationship between the child and his paternal grandparents and paternal family, it is not disputed that the paternal grandparents visited Kenny and his parents prior to their death. Although there is a dispute if it was once or twice a year, I find that this is not a material issue that requires a trial. The paternal grandparents did not state how long their visits were and it is not clear from their own affidavits or the affidavit of Jim Cheng whether they even both visited. Although it is not disputed that there was Skype access, the frequency is disputed. Further, any such access took place up to Kenny being 6 years old and after his parents died there is no evidence of any such contact. Thereafter the only evidence of contact is that paternal grandmother visited him in China at school about once a year. Based on the undisputed evidence that the maternal grandmother lived in China and according to her evidence and the recollection of Kenny she resided with him and his parents. Although the paternal grandparents dispute that the maternal grandmother and maternal grandfather lived with Kenny and his parents prior to their death, it is unclear how they could possibly know if the maternal grandparents lived in the home of Kenny and his parents except for the times they visited or based on hearsay evidence from unknown third parties. Even based only on the evidence of the paternal grandparents it is obvious that although they had a relationship with Kenny it was based on limited contact and cannot be compared to the depth of his relationship with his maternal grandmother. Further it is undisputed that since Kenny's parents' death, he has resided and been cared for by his maternal grandmother.

[150] With respect to the issue of the maternal grandmother "sabotaging" their relationship with Kenny, disobeying a mediated access order and disregarding Justice Curtis' orders, the maternal grandmother deposed that she advised the officials in China that she was coming to Toronto to determine Kenny's property rights to his father's property. She further deposed that the only contact information she had regarding the whereabouts of the paternal grandparents was their address and that when she attended at that address she discovered they had sold the property and moved. She admitted that she did not wish to reveal her address to the children's aid society or the police due to her fears that the paternal grandparents would take Kenny illegally or legally. She also provided proof that she was never served with the Application and had already moved when the documents were left with another tenant in the home she had rented.

[151] Based on that evidence, the paternal grandparents should have responded with some proof that the maternal grandmother was aware of their address in Toronto. With respect to the maternal grandmother being properly served, it was incumbent on the paternal grandparents to respond to this allegation by providing proof that although another tenant was served, that a copy was mailed to the maternal grandmother and was never returned and that the subsequent temporary orders were also mailed to her and that she was served personally. I draw an adverse inference from the fact that none of this evidence was filed by or on behalf of the paternal grandparents. The paternal grandparents simply make the bald statement that the maternal grandmother was aware of the court proceedings and avoided them as an example of her alienating the child. I do not find that these are material facts that require a trial.

[152] Although it is debatable as to whether or not the mediated agreement providing the paternal grandparents with access while they visited China was enforceable in this jurisdiction, even if the maternal grandmother did not abide by the spirit of the agreement, once she was made aware of the court ordered access in this jurisdiction she abided by the order. I do not find that the concern about compliance with the mediated agreement from China is an issue with respect to custody that requires a trial.

[153] The issue of the Office of the Children's Lawyer not properly assessing the child's views and preferences and not assessing the issue of alienation are raised as material facts that require a trial. Much of the criticism in the affidavit of Jim Cheng, which is adopted by the paternal grandparents, is directed at Ms Law and Glory To, who was assigned to assist Ms Law.

[154] Some of the criticism is a result simply of the paternal grandparents and the paternal family members being dissatisfied with the position taken that did not support or vindicate their version of the facts.

[155] The rest of their criticism is based on a misunderstanding of the role of Ms Law and the role of Mr. To in assisting her. Ms Law was appointed pursuant to section 89 (3.1) of the Courts of Justice Act to act as the legal representative of a minor. As such she has a solicitor client relationship with her client, Kenny and it is her role to take a position and advocate on his behalf.

[156] A clinical assist is retained by counsel for the child to provide the court with the child's views and preferences as counsel cannot provide evidence to the court. That was Mr. To's role is this case. He was not retained to conduct an assessment or an investigation pursuant to section 112 of the Courts of Justice Act. He is not an expert and it is not his role in this capacity to weigh evidence, give opinions or assess credibility. I find that the criticism of the role of both Ms Law and Mr. To are unwarranted and do not raise a material issue that requires a trial.

[157] If counsel for the paternal grandparents wished to cross-examine Mr. To, he had the opportunity to request leave from the court to do so. A respondent to a summary judgment motion cannot simply state that a trial is required in order to conduct cross-examinations. In this case, the paternal grandparents do not even point out any issues that would be explored in trial except that there were "brief" interviews and they question if the child's views and preferences could be ascertained. Ms Law had a total of 6 interviews with the child of which 4 were with Mr. To being present. Further, Nick Green of the Children's Aid Society interviewed the child unannounced and independently. The evidence is consistent that Kenny wishes to reside with his maternal grandmother. Other than the paternal grandparents stating, through Mr. Cheng, that the maternal grandmother is sabotaging and alienating their relationship with the child, they do not provide any evidence to challenge the views and preferences of the child.

[158] I find that the court can grant summary judgment motion without the use of the expanded powers set out in subrule 16 (6.1) and (6.2) of the Family Law Rules.

[159] I find there is not a triable issue that the maternal grandmother should have custody for the following reasons:

a) The maternal grandmother has been Kenny's the sole caregiver since the death of his parents on December 16, 2011;

b) Kenny is currently estranged from the paternal grandparents and has had no contact with them since their access was suspended on June 17, 2016; the paternal grandparents took no steps to reinstate access or provided any evidence to indicate they had taken any counselling or parenting courses to improve their interaction with Kenny;

c) Kenny has a close and loving relationship with the maternal grandmother. When describing his life prior to the death of his parents, he recalled living with his parents, his maternal grandparents and two dogs. When asked to describe his family unit, he stated that it included his maternal grandmother, his maternal grandfather and his dog. He does not see his paternal grandparents or paternal family as part of that unit;

d) Kenny described how much he loved his maternal grandmother and all of the things she did for him - encouraged him, supported him in his studies, and encouraged him in his life. He said that he felt hurt when his paternal grandparents criticized his maternal grandmother at the visits. He described his maternal grandmother as his "sunlight" and that living with her was like "living in the sun";

e) Kenny stated that he does not have much of a relationship with his the paternal grandparents and only remembers seeing them once or twice a year, if that, when they came to visit in China;

f) The maternal grandmother has provided Kenny with emotional security and nurturing. In view of the paternal grandparents' allegations against Kenny that is, that he has lied about them, they are unable to provide him with the stability and nurturing he requires;

g) The maternal grandmother is willing and able to provide for Kenny. She enrolled him in school where he is attending regularly and doing well. She has attended to his medical needs and arranged for his appointments with Dr. Mark Shew. Dr. Shew's report states that he was aware of Kenny's serious injuries from the car accident in China. He reported that he has seen Kenny six times and has no concerns about his physical or emotional health;

h) The maternal grandmother has sacrificed her life in China to bring and stay with Kenny in Canada to fulfill the desire of his parents that when Kenny was older he should be raised in Canada;

i) The children's aid society has not verified any concerns about the care the maternal grandmother is providing Kenny. Although counselling has been recommended, it is the evidence of Mr. To that none of the counsellors he has contacted will begin counselling until the litigation is completed;

j) It has been Kenny's consistent preference to reside with his maternal grandmother and if she is required to travel to be able to travel with her;

k) Kenny has reported that the paternal grandparents are like strangers to him. He has reported that he is afraid that his paternal grandparents will take him away from his the maternal grandmother and he will never see her again. He is aware of the conflict between his paternal grandparents and his maternal grandmother and is angry and upset at his the paternal grandparents as they sold his father's house in Toronto and took his property;

l) Kenny is now 13 years old, he has the right to have his views and preferences respected by the court. He has lost both of his parents and has expressed the fear of being separated from the person who has cared for him and to whom he is most closed connected, his maternal grandmother. Kenny is aware of the acrimonious litigation both in China and in Canada and that the paternal grandparents' criticism is directed at the maternal grandmother;

m) The maternal grandmother's plan is to continue to reside in Canada as Kenny wishes to live here. She has obtained a visa that will permit her to do so for the next 5 years although she will have to leave every 6 months. She has been able to travel back to China at various times and this allows Kenny to reconnect with his friends, maternal grandfather and his dog. Kenny is doing well in his current school and has made friends and the plan is for him to continue to attend this school; and

n) The paternal grandparents have not presented a plan that would explain how they can rebuild their relationship with Kenny. There is no evidence to support their allegations about the maternal grandmother not meeting Kenny's needs. They have made many unsubstantiated allegations against her. They have not shown any insight into Kenny's emotional needs. Instead they have focused their energy and criticism on the maternal grandmother's stealing and improperly using Kenny's assets for her own without providing any evidence to substantiate their allegations.

7.3 Is There a Triable Issue with Respect to Access?

[160] I have considered and applied the case law previously outlined with respect to access in general and in particular access by a grandparent. As I have found that the maternal grandmother is the custodial parent, she now stands in place of a parent and I have therefore considered her autonomy to make decisions with respect to the child's access. But in this case, the maternal grandmother is prepared to respect Kenny's wishes and permit him to make his own decision about contact with his paternal grandparents and extended paternal family. Further, I have considered that with the death of his father, access with his paternal grandparents is Kenny's only way to preserve a relationship with his paternal family.

[161] However, I also find that there is no triable issue with respect to access to the paternal grandparents and that any access should be left to Kenny's discretion.

[162] I make this determination based on the same reasons for granting the maternal grandmother custody and for the following additional reasons:

a) There is no existing relationship between Kenny and his paternal grandparents;

b) Based on the paternal grandparents' own evidence, the last time there was a positive relationship between themselves and Kenny was before the death of his parents on December 16, 2011;

c) The access visits as described in Jim Cheng's affidavit, despite the fact he was not present at the visits, do not constitute evidence of a positive relationship between Kenny and his paternal grandparents;

d) The one access visit described in Veronica Cheng's affidavit that she witnessed describes Kenny being on his iPhone throughout the visit;

e) Kenny has stated that he has no wish to have access with his paternal grandparents or paternal family. Mr. To observed Kenny as noticeably stressed when discussing face-to-face visits with his paternal grandparents and he stated he went to the visits as his maternal grandmother told him he had to go. He kept circling back to his fear of his paternal grandparents;

f) The paternal grandparents have not disputed Mr. To's statement that they will continue to tell Kenny "the truth" about his maternal grandmother. In view of their allegations against the maternal grandmother, it is inevitable that they will continue to make allegations against the maternal grandmother that can only serve to destabilize Kenny. They have not offered any evidence that they are prepared to stop speaking about the maternal grandmother to Kenny. On the contrary, the updated 35.1 affidavits filed by the paternal grandparents make it clear that they continue to harbour resentment against the maternal grandmother and continue to make the same unfounded allegations against her that they have been making for the last 6 years;

g) Kenny stated that during the access visits, his paternal grandparents mentioned a lot of things that he did not want to hear about such as memories about his father and family. They would insist on telling him those things even when he asked them to stop. They would then agree to stop but then started again a few minutes later;

h) Kenny stated that the paternal grandparents were hostile to his maternal grandmother at the end of the visits which he experienced as threatening. He expressed that he did not feel safe with his paternal grandparents and did not want to be alone with them and was afraid they would kidnap him;

i) There is no evidence that the maternal grandmother has sabotaged or alienated Kenny from the paternal grandparents. It is the paternal grandparents who have sabotaged their relationship with Kenny and have alienated him by their ongoing allegations against the maternal grandmother and in pursuing the lengthy legal proceedings both in China and in this jurisdiction. There is no evidence that the maternal grandmother interfered with access. The maternal grandmother complied with the court ordered access and it was the court that suspended the paternal grandparents' access in June 2016 and it is the paternal grandparents' who did not seek to have the access reinstated; and

j) There is no plan being proposed for access or how to repair the damage between themselves and the child.

[163] Kenny has the right to have his views and preferences respected. He has been consistent in his views over many interviews and has offered plausible reasons and explanations for his views. In addition to not wishing access to his paternal grandparents, he has expressed the fear of his paternal grandparents having access to his personal information that I assume includes his school reports and any medical information.

[164] Based on his age and level of maturity I find that he should be permitted to make the decision about not only the terms of access but also that his privacy rights be protected and that he should be able to decide who can access information about him.

[165] In this age of social media, Kenny is able to contact his paternal family if he wishes to do so. If any members of his paternal family can be supportive of Kenny's wishes and not involve themselves in this family dispute it may be possible that some relationships can be salvaged. But for the present time I find that even minimal access will be stressful to Kenny and against his best interests. A trial on the issue of access would not change his views and would only provide further stress for him. Kenny has been the subject of conflict between his paternal grandparents and his maternal grandmother and subject to litigation in both China and Canada since the death of his parents on December 16, 2011. He deserves for this litigation to end.

Order

[166] There will be an order as follows:

1. The summary judgment motion is granted.

2. The Respondent shall have sole custody of the child, Kenny Cheng born August 2, 2004;

3. The Respondent shall be permitted to travel with the child without the consent of the Applicants;

4. The Applicants shall be permitted access to information about the child with the consent of the child;

5. The Applicants and the child shall be permitted to exchange electronic cards and gifts on special occasions;

6. In person and telephone access between the child and the Applicants shall be according to the child's wishes;

7. The Applicants and the Respondent shall provide to each other and in writing information about any change in their address, telephone number and email address within 14 days of any such change.

[167] As the successful parties, the Office of the Children's Lawyer and the Respondent are presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Office of the Children's Lawyer and counsel for the Respondent shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Applicants shall submit his written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Office of the Children's Lawyer and/or the Respondent's costs submissions. All submissions to be filed with the trial co-ordinator.

Released: August 15, 2017

Signed: Justice Roselyn Zisman