Court of Appeal for Ontario

CITATION: Law v. Siu, 2009 ONCA 61

DATE: 20090122

DOCKET: C48992

BEFORE: Sharpe, Blair and Rouleau JJ.A.

BETWEEN:

Chi Fat Alfred Law

Appellant (Respondent in Superior Court)

and

Hon Man Siu and Yuk Kwai Shiu Lau

Respondent (Added Respondents in Superior Court)

COUNSEL:

Chi Fat Alfred Law in person

Clive Algie for the respondents

Julia Tremain for the Children’s Lawyer

Heard & released orally: January 21, 2009

On appeal from the judgment of Justice Cory A. Gilmore of the Superior Court of Justice dated May 14, 2008.

ENDORSEMENT

[1] The appellant father seeks to set aside the order of Justice Gilmore dated May 14, 2008. In that order Justice Gilmore granted custody of the appellant’s two children, now aged 14 and 15, to the respondent maternal grandparents. She also provided that the appellant should continue to have access in accordance with an earlier order of Justice Wildman.

[2] The custody order was granted on a motion for summary judgment under the Family Law rules. We see no error in the motion judge’s decision. There is no genuine issue of fact that requires a trial for determination in the circumstances of this case, in our view. We note in particular that:

a) the children do not regard their father as a parental figure and have strongly indicated that they wish to remain in the custody of their grandparents;

b) the children have lived with the respondent grandparents for most of the 10 years they have been in Canada;

c) the children have only seen their father sporadically during most of that period;

d) the father has not exercised his rights to supervised access pursuant to a consent order dated September 12, 2007 giving him those rights;

e) the respondent grandparents, although in their seventies, are described by their doctor as being in “good” health and;

f) the Children’s Lawyer recommends the grandparents be given custody.

[3] Sadly, the children’s mother has died. Mr. Law understandably emphasizes his “biological connection” as their father, but as the motion judge noted, biological connection is only one factor to be considered. The motion judge carefully considered the best interests of the children. Given the foregoing facts which are not in issue, we do not see how a trial, with viva voce testimony and cross-examination, could lead to any other order than that made by the motion judge.

[4] Mr. Law has sought to tender fresh evidence on the appeal. Much of this evidence was before the motion judge. To the extent it was not, there is no explanation as to why it was not available at the time. In any event, we are not persuaded that the proposed fresh evidence would have any meaningful impact on the outcome.

[5] The appeal is therefore dismissed. Costs fixed at $2,000 to the respondents inclusive of disbursement and GST. The Children’s Lawyer does not ask for costs.

“Robert J. Sharpe J.A.

“R.A. Blair J.A.”

“Paul Rouleau J.A.”