Van de Perre v. Edwards, [2001] 2
S.C.R. 1014, 2001 SCC 60
Kimberly Van de Perre Appellant
v.
Theodore Edwards and Valerie Cooper Edwards Respondents
and
African Canadian Legal Clinic, Association of Black
Social Workers and Jamaican Canadian Association Interveners
Indexed as: Van de Perre v. Edwards
Neutral citation: 2001 SCC
60.
File No.: 27897.
2001: June 14; 2001: September 28.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Family law -- Custody and access -- Standard of
appellate review -- Custody dispute between unmarried Caucasian mother and
African-American father over four-year-old child -- Mother awarded sole custody
at trial -- Father and his wife granted custody on appeal -- Whether Court of
Appeal applied appropriate standard of appellate review -- Whether trial judge
made material error or ignored relevant evidence – Importance of race in
determining custody of child of mixed racial heritage -- Family Relations Act,
R.S.B.C. 1996, c. 128, s. 24(1).
Civil procedure -- Change of parties -- Adding
party -- Whether Court of Appeal erred in adding father’s wife as a party and
custodial applicant during appeal hearing -- British Columbia Supreme Court
Rules, B.C. Reg. 221/90, Rule 15(5).
K is a single Caucasian Canadian citizen living in
Vancouver. T is an African American and was a professional basketball player.
T has been married to V since 1991 and they have twin daughters, born in 1990.
K and T met in the spring of 1996 and commenced a sexual relationship shortly
thereafter. Their relationship lasted approximately 18 months. In June 1997,
E, the son of K and T, was born. At the end of the 1996-1997 basketball
season, T and V returned to North Carolina before the birth of E; however, in
September 1997, T returned to Vancouver for the new basketball season and his
relationship with K continued. When E was 3 months old, K commenced
proceedings against T for custody and child support. The trial judge awarded sole
custody to K, four one-week access periods per year being granted to T. T
appealed. During the hearing, on the Court of Appeal’s invitation, V applied
for admission as a party and requested joint custody with her husband. The
Court of Appeal granted the application and the joint request for custody; K
was to receive generous access.
Held: The appeal
should be allowed and the trial decision restored.
The principal determination to be made in cases
involving custody is the best interests of the child. In making this
determination, the trial judge must consider numerous factors, in particular
those stated in the pertinent legislation. The narrow power of appellate
review does not allow an appellate court to delve into all custody cases in the
name of the best interests of the child where there is no material error. The
scope of appellate review does not change because of the type of case on
appeal. In this case, the Court of Appeal considered the trial judge’s
decision and decided that it was within the scope of review to examine all the
evidence and determine whether the trial judge weighed the evidence
improperly. It is in reconsidering the evidence that the Court of Appeal
determined that the trial judge had made manifest errors. When one reconsiders
the trial judge’s decision in light of the appropriate test for appellate
review, it is apparent that there was no basis upon which the Court of Appeal
was required to reconsider the evidence.
The first key difficulty the Court of Appeal found in
the trial judge’s decision related to s. 24(1)(e) of the Family Relations
Act and the ability of both K and T to exercise the rights and duties of
custody. However, the trial judge’s reasons indicate that he did consider T’s
parenting ability. Nor did he “ignore” K’s negative attributes. The mere fact
that K contested certain access applications is not evidence that she would not
follow a court order. Secondly, the Court of Appeal held that the trial judge
failed to consider the bonds that exist between E and V, the twins, and their
extended family. In fact, the trial judge discussed the bond between E, V and
his sisters. There is no material error in this regard which would open the
door to appellate intervention. Thirdly, the Court of Appeal found that the
trial judge made findings of credibility but was diverted by the arguments made
concerning T’s extra-marital affairs and the parties’ attitudes towards each
other. The trial judge’s finding that T and V both blame K for the
relationship and believe she is a “gold-digger” might be relevant; however,
since the parties’ attitudes towards and views of each other might impact the
emotional well-being of the child and must thus be considered under s. 24(1)(a)
of the Act. Moreover, the trial judge did not consider T in isolation from his
family. While the negative and positive traits and influences of step-parents
must be considered, the objective is to determine the parenting abilities of
the specific person who will ultimately receive custody. In this case, it may
be said that T’s conduct impacts both ss. 24(1)(e) and 24(1)(a), and the trial
judge was thus correct in considering it. Finally, it was unclear to the Court
of Appeal whether the trial judge considered all s. 24(1) factors or whether he
considered the “tender years” doctrine or had a stereotypical view of one or
both parties. There is absolutely nothing, however, to give any indication
that the trial judge even considered the tender years doctrine. Furthermore, nothing
stated by him indicates a bias against Black people in general or Black
basketball players in particular.
The question of which parent will best be able to
contribute to a healthy racial socialization and overall healthy development of
the child is a question of fact to be determined by the courts on a
case-by-case basis and weighed by the trial judge with other relevant factors.
The weight to be given to all relevant factors is a matter of discretion
exercised with regard to the evidence. Racial identity is but one factor that
may be considered in determining personal identity; the relevancy of this
factor depends on the context. Notwithstanding the role that race may play in
custody determinations, the trial judge apparently noted that this issue was
not determinative and that, in this case, E would be in a more stable and
loving environment if custody was granted to K. He clearly considered the
mixed race of E and implied that race may impact s. 24(1)(a) in some cases. By
intervening in the consideration of race by the trial judge, the Court of
Appeal failed to apply the correct standard of review. In
this case, there was absolutely no evidence adduced which indicates that race
was an important consideration. Without evidence, it is not possible for any
court, and certainly not the Court of Appeal, to make a decision based on the
importance of race.
Adding a party on the initiative of the Court of
Appeal is unfair to other parties and does not fall within the court’s
supervisory role. Moreover, even if the Court of Appeal had been correct in
finding that the trial judge should have added V by reason of the court’s parens
patriae jurisdiction, it still exceeded its jurisdiction in finding that
the trial judge would have awarded custody to T and V jointly had he not made
the supposed error.
Cases Cited
Referred to: Hickey v. Hickey, [1999] 2 S.C.R. 518; L. (A.) v. K.
(D.) (2000), 190 D.L.R. (4th) 108, 2000 BCCA 455; Gordon v. Goertz,
[1996] 2 S.C.R. 27; Van Mol (Guardian ad Litem of) v. Ashmore (1999),
168 D.L.R. (4th) 637, leave to appeal refused, [2000] 1 S.C.R. vi; Tyabji v.
Sandana (1994), 2 R.F.L. (4th) 265; R. v. Williams, [1998] 1 S.C.R.
1128; H. (D.) v. M. (H.), [1997] B.C.J. No. 2144 (QL), rev’d (1998), 156
D.L.R. (4th) 548, rev’d [1999] 1 S.C.R. 328; King v. Low, [1985] 1
S.C.R. 87; J.R. v. D.W., [1992] B.C.J. No. 1610 (QL).
Statutes and Regulations Cited
Adoption Act, R.S.B.C. 1996, c. 5, s. 3.
Child, Family and Community
Service Act, R.S.B.C. 1996, c. 46.
Family Relations Act, R.S.B.C. 1996, c. 128, ss. 15, 24(1), (1.1) [ad. 1998, c. 28, s.
1], (3), (4), 35(1.1) [idem, s. 2].
Family Services Act, S.N.B. 1980, c. F-2.2, ss. 1, 129(2).
Supreme Court Rules, B.C. Reg. 221/90, Rule 15(5) [am. B.C. Reg. 95/96, s. 4].
Authors Cited
McRoy, Ruth G., and Christine C.
Iijima Hall. “Transracial Adoptions: In Whose Best Interest?” in Maria P. P.
Root, ed., The Multiracial Experience. Thousand Oaks, California: Sage
Publications, 1996, 63.
Perry, Twila L. “The
Transactional Adoption Controversy: An Analysis of Discourse and
Subordination” (1993-94), 21 N.Y.U. Rev. L. & Soc. Change 33.
Pollack, Gayle. “The Role of Race
in Child Custody Decisions Between Natural Parents Over Biracial Children”
(1997), 23 N.Y.U. Rev. L. & Soc. Change 603.
APPEAL from a judgment of the British Columbia Court
of Appeal (2000), 74 B.C.L.R. (3d) 122, 136 B.C.A.C. 21, 222 W.A.C. 21, 184
D.L.R. (4th) 486, 4 R.F.L. (5th) 436, [2000] B.C.J. No. 491 (QL), 2000 BCCA
167, allowing the respondents’ appeal from a decision of the British Columbia
Supreme Court, [1999] B.C.J. No. 434 (QL). Appeal allowed.
Steven N. Mansfield and
Kenneth B. Oliver, for the appellant.
F. Ean Maxwell, Q.C.,
and Barbara E. Bulmer, for the respondents.
Sheena Scott and Marie
Chen, for the interveners the African Canadian Legal Clinic, the
Association of Black Social Workers, and the Jamaican Canadian Association.
The judgment of the Court was delivered by
1
Bastarache J. — The
appellant is a single Caucasian Canadian citizen living in Vancouver. At the
time of trial, she was 24 years of age. She did not finish high school and has
a spotty work record. Her upbringing was not ideal due to her parents’ divorce
and her mother’s history of illness and drug use. Presently, however, she has
a good relationship with both her mother and her father. She was actively
involved in the professional basketball scene in Vancouver; this is how she
came to know the respondent, Mr. Edwards.
2
Mr. Edwards is an African American. At the time of trial, he was 34
years of age and living in Vancouver. He was a professional basketball player
and, since 1989, was a member of numerous National Basketball Association (NBA)
teams. At the time of trial and during his relationship with the appellant,
Mr. Edwards was a member of the Vancouver Grizzlies NBA team and had been since
1995. Mr. Edwards has been married to the respondent Mrs. Edwards since 1991,
one and a half years after the birth of their twin daughters in 1990. Although
both had attended university, neither finished their university degrees.
During his professional basketball career, Mr. Edwards has played for teams
located in several North American cities. While the Edwards’ home base is in
North Carolina, the family is in the practice of moving with Mr. Edwards at the
end of each trade. At the time of trial, the entire family was living in
Richmond, British Columbia.
3
The appellant and the respondent Mr. Edwards met in the spring of 1996
and commenced a sexual relationship shortly thereafter. Their relationship
lasted approximately 18 months. On June 3, 1997, Elijah Theodore
Van de Perre was born. He is the son of the appellant and Mr.
Edwards. Although disputed by the parties, it is clear from Mrs. Edwards’
testimony that she learned of Mr. Edwards’ extramarital affair with the
appellant in December 1996 by accident, just as she did with at least two other
affairs. Notwithstanding the circumstances, the respondents have remained
married. Mrs. Edwards is a stay-at-home mother.
4
At the end of the 1996-1997 basketball season, the respondents returned
to North Carolina. This was before the birth of Elijah; however, in September
1997, Mr. Edwards returned to Vancouver for the new basketball season and his
relationship with the appellant continued. Mrs. Edwards and the twins had
planned to stay in North Carolina, but after a telephone call with Mr. Edwards
wherein she learned he had continued to have relations with the appellant, she
decided to return to Vancouver.
5
When Elijah was 3 months old, the appellant commenced proceedings
against Mr. Edwards for custody and child support. Mr. Edwards initially
sought joint custody and liberal access, but later amended his pleadings to
seek sole custody. The trial lasted 26 days, from October 1998 to January
1999. The trial judge’s decision was released on February 25, 1999: [1999]
B.C.J. No. 434 (QL). Warren J. awarded sole custody to the appellant. The
order granted Mr. Edwards access to Elijah for four one-week periods quarterly
during the calendar year. The order also entitled Mr. Edwards to share the
Christmas holidays and Elijah’s birthday and, when in Vancouver, to exercise
access upon short notice and for periods of no more than 48 hours.
6
Mr. Edwards became a free agent in June 1998 and was then without a
contract. After the trial, the family moved to Miami where Mr. Edwards obtained
a one-year contract with the city’s NBA team. Subsequently, Mr. Edwards signed
to play basketball with the European league and moved to Athens, Greece. His
wife and daughters returned to North Carolina.
7
Mr. Edwards appealed the trial decision. During the hearing, on the
invitation of the Court of Appeal, Mrs. Edwards applied for admission as a
party and requested joint custody with her husband. The application and joint
request for custody were granted. The court did not state any access
provisions except to say that the appellant was to receive generous access:
(2000), 184 D.L.R. (4th) 486, 2000 BCCA 167. The decision of the Court of
Appeal was stayed pending the appellant’s application for leave to this Court.
8
The key issue here is the applicable standard of review to be followed
by appellate courts in family law cases involving custody. In the present
case, other issues include a determination of whether the Court of Appeal erred
in finding that the trial judge erred in his consideration, or lack thereof, of
the child’s mixed racial heritage, and whether the Court of Appeal erred in
adding Mrs. Edwards as a party.
I. The Applicable Standard of Review for Appellate Courts in
Custody Cases
9
The principal determination to be made in cases involving custody is the
best interests of the child. In making this determination, as noted by Warren
J., the trial judge must consider numerous factors, in particular those stated
in the pertinent legislation, which in this case is the Family Relations Act,
R.S.B.C. 1996, c. 128 (“Act”). Section 24(1) of the Act states:
24 (1) When making, varying or
rescinding an order under this Part, a court must give paramount consideration
to the best interests of the child and, in assessing those interests, must
consider the following factors and give emphasis to each factor according to
the child’s needs and circumstances:
(a) the health and emotional well being of the
child including any special needs for care and treatment;
(b) if appropriate, the views of the child;
(c) the love, affection and similar ties that
exist between the child and other persons;
(d) education and training for the child;
(e) the capacity of each person to whom
guardianship, custody or access rights and duties may be granted to exercise
those rights and duties adequately.
In addition to
these factors, the Act authorizes the trial judge to consider the conduct of
the parents, but only in so far as it impacts one of the aforementioned
factors. Sections 24(3) and (4) state:
(3) If the conduct of a person does not
substantially affect a factor set out in subsection (1) or (2), the court must
not consider that conduct in a proceeding respecting an order under this Part.
(4) If under subsection (3) the conduct of a
person may be considered by a court, the court must consider the conduct only
to the extent that the conduct affects a factor set out in subsection (1) or
(2).
10
In preparing reasons in custody cases, a trial judge is expected to
consider each of these factors in light of the evidence adduced at trial;
however, this is not to say that he or she is obligated to discuss every piece
of evidence in detail, or at all, when explaining his or her reasons for
awarding custody to one person over another. This would indeed be an
unreasonable requirement at the end of a 26-day trial. Because of this, trial
judges might sometimes appear to stress one factor over another and, in fact,
it may be said that this is inevitable in custody cases which are heavily
dependant on the particular factual circumstances at issue. This situation
does not open the door to a redetermination of the facts by the Court of
Appeal.
11
In reviewing the decisions of trial judges in all cases, including
family law cases involving custody, it is important that the appellate court
remind itself of the narrow scope of appellate review. L’Heureux‑Dubé J.
stated in Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10 and 12:
[Trial judges] must balance the objectives and factors set out in the Divorce
Act or in provincial support statutes with an appreciation of the
particular facts of the case. It is a difficult but important determination,
which is critical to the lives of the parties and to their children. Because
of its fact-based and discretionary nature, trial judges must be given
considerable deference by appellate courts when such decisions are reviewed.
. . .
There are strong reasons for the significant
deference that must be given to trial judges in relation to support orders.
This standard of appellate review recognizes that the discretion involved in
making a support order is best exercised by the judge who has heard the parties
directly. It avoids giving parties an incentive to appeal judgments and
incur added expenses in the hope that the appeal court will have a different
appreciation of the relevant factors and evidence. This approach promotes
finality in family law litigation and recognizes the importance of the
appreciation of the facts by the trial judge. Though an appeal court must
intervene when there is a material error, a serious misapprehension of the
evidence, or an error in law, it is not entitled to overturn a support order
simply because it would have made a different decision or balanced the factors
differently. [Emphasis added.]
12
Hickey involved the appellate review of support orders, but the
principles related to appellate review discussed therein are equally applicable
to orders concerning child custody. This is where the British Columbia Court
of Appeal fell into error. Although Newbury J.A. cited Hickey and
discussed the narrow scope of review, at para. 6, she stated:
As L’Heureux‑Dubé J. observed in Hickey,
there are strong reasons for this deferential standard in family law cases:
most importantly, it promotes finality in family law litigation and recognizes
the importance of the appreciation of the facts by the trial judge. Still,
the interests of the child, being paramount, must prevail over those of the
parties and of society in finality, and appellate courts must do more than
“rubber-stamp” trial judgments unless serious errors appear on their face.
Otherwise, the possibility for clear injustice exists. As indicated by the
passages quoted above, a trial court’s ignoring of relevant evidence, or the
drawing of incorrect conclusions from the evidence, may also require appellate
interference. [Emphasis added.]
This statement
seems to imply that Hickey and the basic principles of appellate review
are not fully applicable to child custody cases. The approach of the Court of
Appeal is wrong. The narrow power of appellate review does not allow an
appellate court to delve into all custody cases in the name of the best
interests of the child where there is no material error as decided in Hickey.
The Court of Appeal is not in a position to determine what it considers to be
the correct conclusions from the evidence. This is the role of the
trial judge. The Court of Appeal’s reasoning in this case is reaffirmed in the
more recent British Columbia Court of Appeal decision in L. (A.) v.
K. (D.) (2000), 190 D.L.R. (4th) 108, 2000 BCCA 455. In her
concurring decision, Newbury J.A. writes, at para. 23:
With respect, I must say that where the custody of a child is
concerned, statements of the applicable “standard of review”, most of which are
imported from cases involving civil damages, seem to me ill‑suited. To
have a child’s future depend on whether an error of law has been shown in a
trial judgment, or on whether the trial judge has committed a “palpable and
overriding” error in fact‑finding, instead of simply being wrong, seems
contrary to the principle, which has been stated over and over again by
Canadian courts, that the best interests of the child is the primary
consideration. I have always understood that this was applicable to appellate
as well as to trial courts. At the same time, there is no doubt that in
cases such as this, where each “side” has much to offer the child, the trial
judge has a great advantage in being able to see all the parties over the
period of trial and to make the subtle judgment‑calls necessary in
determining the child’s best interests. [Emphasis added.]
13
As I have stated, the Court of Appeal was incorrect to imply that Hickey,
supra, and the narrow scope of appellate review it advocates are not
applicable to custodial determinations where the best interests of the child
come into play. Its reasoning cannot be accepted. First, finality is not
merely a social interest; rather, it is particularly important for the parties
and children involved in custodial disputes. A child should not be unsure of
his or her home for four years, as in this case. Finality is a significant
consideration in child custody cases, maybe more so than in support cases, and
reinforces deference to the trial judge’s decision. Second, an appellate court
may only intervene in the decision of a trial judge if he or she erred in law
or made a material error in the appreciation of the facts. Custody and access
decisions are inherently exercises in discretion. Case-by-case consideration
of the unique circumstances of each child is the hallmark of the process. This
discretion vested in the trial judge enables a balanced evaluation of the best
interests of the child and permits courts to respond to the spectrum of factors
which can both positively and negatively affect a child.
14
It is clear from this case that it is necessary for this Court to state
explicitly that the scope of appellate review does not change because of the
type of case on appeal. The Court of Appeal discussed, and the respondents
relied heavily on, the decision of McLachlin J. (as she then was) in Gordon
v. Goertz, [1996] 2 S.C.R. 27. In that case, the Court found that the
trial judge had only mentioned one factor to be considered in determining the
best interests of the child. As noted by McLachlin J., there was no way of
knowing if the trial judge had considered the other applicable factors.
Further, the Court noted that the trial judge had stated that he was relying
heavily upon the findings of another judge. As a result, McLachlin J. stated, at
para. 52: “. . . one may equally infer that the necessary fresh
inquiry was not fully undertaken. . . . [I]t seems clear that the
trial judge failed to give sufficient weight to all relevant considerations
. . . and it is therefore appropriate for this Court to review the
decision and, should it find the conclusion unsupported on the evidence, vary
the order accordingly.” Rather than indicating that appellate review differs
when a court must consider the best interests of the child, Gordon is
consistent with the narrow scope of appellate review discussed later in Hickey,
supra. The case does not suggest that appellate review is appropriate
whenever a trial judge has failed to mention a relevant factor or to discuss a
relevant factor in depth.
15
As indicated in both Gordon and Hickey, the approach to
appellate review requires an indication of a material error. If there is an
indication that the trial judge did not consider relevant factors or evidence,
this might indicate that he did not properly weigh all of the factors. In such
a case, an appellate court may review the evidence proffered at trial to
determine if the trial judge ignored or misdirected himself with respect to
relevant evidence. This being said, I repeat that omissions in the reasons will
not necessarily mean that the appellate court has jurisdiction to review the
evidence heard at trial. As stated in Van Mol (Guardian ad Litem of) v.
Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appeal refused
[2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to
the reasoned belief that the trial judge must have forgotten, ignored or
misconceived the evidence in a way that affected his conclusion. Without this
reasoned belief, the appellate court cannot reconsider the evidence.
16
In the present case, the Court of Appeal considered the decision of the
trial judge and decided that it was within the scope of review to examine all
the evidence and determine whether the trial judge weighed the evidence
improperly. It is in reconsidering the evidence that the Court of Appeal
determined that the trial judge had made material errors. As discussed above,
this is not the proper method of appellate review. If the Court of Appeal had
followed the appropriate method, it would not have reconsidered the evidence
and found what it described as material errors in Warren J.’s decision. There
was no scope for appellate intervention in this case. This can be illustrated
by a review of the key difficulties that the Court of Appeal found in the trial
decision. These difficulties can be divided into (i) concerns related to s.
24(1)(e) of the Act, (ii) the failure of the trial judge to consider the bonds
that exist between Elijah and his paternal family (s. 24(1)(c)), (iii) an
emphasis on the attitudes of the parties towards each other and Mr. Edwards’
extra-marital affairs, and (iv) the concern that the trial judge based his
decision on stereotypical views including the tender years doctrine.
A. Concerns
Related to Section 24(1)(e) of the Act
17
The Court of Appeal found that Warren J. focussed on the negative
attributes of Mr. Edwards while ignoring those of Ms. Van de Perre.
In addition, it found that he did not properly consider the parenting ability
of each biological parent. The Court of Appeal held that the trial judge
ignored the appellant’s troubling family background which, it stated, would
impact her ability to raise a child, and found that Warren J. erred in finding
that the appellant’s mother provided “some” childcare when, in fact, the
appellant relied heavily on her mother. Finally, the Court of Appeal held
that, based on the number of court orders related to access, the appellant
might thwart access in the future. In essence, the concerns raised by the
Court of Appeal relate to s. 24(1)(e) of the Act: the ability of Ms.
Van de Perre and Mr. Edwards to exercise the rights and duties of
custody.
18
Dealing first with the parenting ability of Mr. Edwards, the reasons of
the trial judge indicate that he did consider this factor. Warren J. mentioned
that he was a good father to his twin daughters; however, he left the
day-to-day childcare with his wife. There appears to have been very little
additional evidence concerning Mr. Edwards’ parenting abilities. As noted by
the trial judge, the respondent focussed on the negative attributes of the
appellant and her social life, as well as her perceived interference with
access, rather than his actual parenting ability. This was acknowledged by the
Court of Appeal, which noted that the respondents’ counsel focussed primarily
on the negative attributes of the appellant. The Court of Appeal also quoted
portions of Dr. Korpach’s psychological evaluation, which was completed
pursuant to s. 15 of the Act. It is noteworthy that there are several concerns
regarding the parenting ability of Mr. Edwards stated therein that were not
mentioned by the trial judge; for instance, the psychologist’s report states
that Mr. Edwards spanks his twin daughters and that it will be difficult for
him to learn day-to-day childcare requirements. The Court of Appeal attempts
to infer positive evidence of Mr. Edwards’ parenting abilities from his success
in basketball and his community activities. It can however hardly be said that
the failure of the trial judge to discuss an inference made by the Court of
Appeal was a material error.
19
Second, the trial judge did not “ignore” the negative attributes of the
appellant. These negative attributes, although not focussed on in detail, were
referred to throughout the trial judge’s reasons. As an example, at para. 6,
Warren J. stated:
During the course of this very lengthy trial it
became obvious that the plaintiff was doing her very best to minimize the
extent of the conflict between the demands of her social life and the demands
of her parental responsibilities, certainly during the first year of E.’s
life. Further, it was only when she was faced with the probability of evidence
of her relationships with other men that she was forthcoming. Finally, I
cannot accept her evidence that she has no memory of many of her long distance
telephone calls and trips to the United States and I conclude that she was endeavoring
to hide evidence which may have been embarrassing.
20
Third, concerning the way in which the appellant was raised and the
difficulties she faced during her childhood, the trial judge mentioned these
from the outset. He specifically mentioned the appellant’s mother’s drug
problem and the difficulties that the appellant had with her mother before
Elijah was born. It is clear that Warren J. considered this evidence;
therefore, there is no material error.
21
Finally, the respondents stress the fact that the appellant objected to
numerous access orders and argue that this is evidence that she would not
follow access provisions. The Court of Appeal agreed. This is very
speculative. There was no evidence raised that indicated that the appellant
failed to follow the court orders. The only suggestion of this is found in the
wording of the June 15, 2000 order; however, this order was granted post-appeal
and was therefore not available to the Court of Appeal or the trial judge for
consideration. When one parent requests an extension of access, the other
parent has the right to dispute the application. This does not mean that the
appellant would not facilitate access if she were to get custody. Further,
this does not imply that a court order will be necessary for all changes in
access. The affidavit of Valerie Edwards dated February 14, 2000, almost a
month prior to the Court of Appeal decision, supports the view that the
appellant has agreed, without court intervention, to some modifications and
extensions of access. The mere fact that she contested certain applications
with regard to access is not evidence that she would not follow a court order.
There is no evidence that the trial judge erred in finding, at para. 45, that
“there has been extensive access which, by and large, has been facilitated by
the plaintiff rather than thwarted”.
B. The Failure of the Trial Judge to Consider
the Bonds that Exist Between Elijah and His Paternal Family (Section 24(1)(c))
22
The Court of Appeal held that the trial judge failed to consider the
bonds that exist between Elijah and Mrs. Edwards, the twins and the
respondents’ extended family. In fact, the trial judge discussed the bond
between Elijah and Mrs. Edwards and his sisters. In addition, he explicitly
stated, at para. 19:
The defendant’s family continues to live in North
Carolina and he has contributed to their financial needs. Other than knowing
that his mother is alive and that he has two brothers and three sisters, I know
very little of their circumstances. Mrs. V.E.’s father, a retired New York
policeman, recently died. She testified that he was a very important factor in
her life. Again, I know very little about other members of Mrs. V.E.’s family.
The
respondents state, at para. 115 of their factum, that there is evidence that
the Edwards are “involved with and close to members of their respective
extended families and Elijah knows who they are”. However, when reviewing the
trial transcript at p. 596 of the respondents’ record, it is clear that Elijah
only “knows” who these relatives are through pictures. At the time of trial,
he had never met them. There was no evidence that the Edwards presently see or
speak to family members mentioned peripherally in their testimony. The
respondents simply did not put evidence forward concerning this, and the trial
judge mentioned this lack of evidence in his reasons. As such, there is no
material error in this regard that would open the door to appellate intervention.
C. An Emphasis on the Attitudes of the Parties
Towards Each Other and Mr. Edwards’ Extra-marital Affairs
23
Aside from the above findings, which implicate ss. 24(1)(e) and 24(1)(c)
of the Act, the Court of Appeal found that the trial judge made findings of
credibility but was diverted by the arguments made concerning Mr. Edwards’
extra-marital affairs and the parties’ attitudes towards each other. The Court
of Appeal remarked that the trial judge criticized Mrs. Edwards for blaming the
appellant for the relationship with Mr. Edwards. It stated that the appellant
was in part to blame but, in any event, this had nothing to do with the best
interests of the child. I disagree with this conclusion. First, it is
irrelevant who is to blame for the extra-marital affair. However, the parties’
attitudes towards and views of each other are important. These attitudes might
impact the emotional well-being of the child and, as such, must be considered
pursuant to s. 24(1)(a) of the Act. A child should be with someone who fosters
the relationship between him or her and the non-custodial parent. The trial
judge’s finding that the respondents both blame the appellant for the
relationship and both believe that she is a “gold digger” might be relevant in
this respect. This discussion by the trial judge does not justify appellate
intervention.
24
With respect to the discussion of Mr. Edwards’ extra-marital affairs,
the Court of Appeal found that Warren J. incorrectly considered the impact of
these relationships on the marriage of the respondents. It held that a
marriage breakdown was speculative and that the trial judge considered Mr.
Edwards in isolation from his family. It found that this was a material error
of law. Again, I disagree. Warren J. did not consider Mr. Edwards in
isolation from his family. Rather, he considered both biological parents as
individuals as well as in conjunction with their support network. This is
consistent with ss. 24(1)(a), 24(1)(c) and 24(1)(e).
25
I agree with the Court of Appeal that a trial judge cannot consider a
parent completely in isolation from his or her support network. Step-parents
and siblings are important in a child’s life (s. 24(1)(c)). These individuals
play an important role in the child’s emotional well-being (s. 24(1)(a)) since
they are a part of the family unit in which the child might end up living. The
negative and the positive traits and influences of step-parents must be
considered. This being said, there is a distinction between taking a
step-parent into consideration to determine the family unit in which the child
would live if that biological parent were awarded custody and taking a
step-parent into consideration to determine if his or her positive qualities
are sufficient to override the negative qualities of his or her custody-seeking
spouse. Section 24(1)(e) is clear and requires the trial judge to consider the
ability of the person who can exercise custody to actually exercise the right
and duties adequately. As will be discussed later in this case, this refers to
Mr. Edwards and Ms. Van de Perre.
26
Section 24(1)(e) requires that the trial judge consider the merits of
each applicant with regard to the whole context. In most families, the
biological parent is not completely alone. He or she will have support
networks to help him or her in times of need. In many cases, there is also an
actual family unit that must be considered in determining if the parent
applying for custody is capable of adequately parenting the child. In some
cases, the family unit will assist the custodial parent; in others, it may
hinder good parenting. Support networks and family units are, however, only
two of many factors to be considered. Pursuant to the specific wording of s.
24(1)(e), the objective in every case is to determine the parenting abilities
of the specific person who will ultimately receive custody.
27
In the present case, Mrs. Edwards and her daughters are important in
determining the best interests of the child because of the bond that might
exist between them and Elijah. This is stated in s. 24(1)(c) and, as discussed
earlier, was noted by the trial judge.
28
With respect to s. 24(1)(e), the trial judge considered the family unit
when he discussed the stability of Mr. Edwards’ marriage. He considered the
factual circumstances brought out in evidence and possible problems that might
arise. Pursuant to s. 24(3) of the Act, the conduct of a parent cannot
generally be considered; however, if this conduct impacts a factor stated in s.
24(1), such as the emotional well-being of Elijah or the ability of Mr. Edwards
to exercise custody with and without Mrs. Edwards, it is relevant. When
considering the family unit, the trial judge found that Mr. Edwards has a weak
and unstable marriage. As such, this might impact the parenting support he
receives both during the marriage and following a possible marriage breakdown.
The appellant, on the other hand, will likely have her parents’ support and
assistance until their death.
29
Warren J. was also obligated to consider whether Mr. Edwards’ conduct
might impact his individual ability to exercise the duties and rights of
custody. The trial judge and Court of Appeal both found that Mr. Edwards
worked long periods of time away from home. He travelled extensively and Dr.
Korpach stated that he was unlikely to terminate his work to care for his
children. This said, it is important to add that many fathers and mothers work
long hours; many are also required to travel extensively. Work commitments do
not always have a negative effect on parenting. This is a circumstance which
must be considered in light of all other relevant facts. In this particular
case, Mr. Edwards not only has extremely long periods away from home, but it
was also found by the trial judge that while at home, he is very active in the
professional basketball social scene and has had several extra-marital
affairs. This, combined with the findings that he leaves all the day-to-day
childcare activities to his wife, and the evidence of Dr. Korpach, which
indicates that he might not learn this role, raises doubt as to his ability to
parent on his own.
30
A trial judge cannot give custody to a father merely because his wife is
a good mother. Her presence is a factor but, overall, the court must consider
if the applicant would make a good father in her absence. Even if the family
were stable, this would not be determinative in a s. 24(1)(e) analysis. Here,
it is Mr. Edwards’ personal capacity to exercise custody that must be
considered, and the support provided by his wife is but a factor to be weighed
in assessing these parental abilities.
31
As a final note, s. 24(1)(a) might also be affected by the extra-marital
affairs. The trial judge found that the daughters of Mr. and Mrs. Edwards were
very upset when Mr. Edwards’ affair with the appellant was discovered. It is
probable that Elijah would be affected in the same way if Mr. Edwards were to
have another affair.
32
In this case, it may be said that Mr. Edwards’ conduct impacts both ss.
24(1)(e) and 24(1)(a), and, as such, the trial judge was correct in considering
his conduct. The Court of Appeal criticized Warren J. for not considering
similar conduct of the appellant. It is clear from Warren J.’s reasons that he
was aware of the appellant’s social behaviour; yet, he did not discuss any
impact that this might have on her ability to parent Elijah. Instead, he found
that the appellant was a good mother. This finding is supported by the
evidence of Dr. Korpach who stated that the appellant has acquired good
parenting skills since learning of her pregnancy. It is unclear how her
behaviour might affect her ability to exercise custody pursuant to s. 24(1)(e)
either by negatively impacting the family unit or her individual ability. In
addition, it is unclear how this behaviour might impact Elijah’s emotional
well-being. Without an impact on one of the factors in s. 24(1), her conduct
is irrelevant and, pursuant to s. 24(3), should not be considered. Past or
present conduct by a parent that does not, in the words of the Act,
“substantially affect” the best interests of the child has no bearing on a
custody determination and does not require comment.
33
Returning to the test for appellate intervention, there is no indication
that Warren J. erred materially in considering the attitudes of the parties
towards each other or in considering the extra-marital affairs of Mr. Edwards.
He noted s. 24(3) which provides that conduct cannot be considered unless it
impacts a factor listed in s. 24(1) and, although he did not explicitly refer
to the factors in question, he did discuss this conduct with reference to Mr.
Edwards’ parenting abilities and Elijah’s emotional well-being.
D. The Concern that the Trial Judge Based his
Decision on Stereotypical Views Including the Tender Years Doctrine
34
The Court of Appeal stated that it was unclear whether the trial judge
considered all the factors in s. 24(1) or whether he considered the “tender
years” doctrine or had a stereotypical view of one or both parties. First, as
noted above, the trial judge clearly stated and discussed all factors listed in
s. 24(1). With respect to the tender years doctrine, the trial judge, quoting
from the case of Tyabji v. Sandana (1994), 2 R.F.L. (4th) 265
(B.C.S.C.), specifically stated that stereotypical gender views have no place
in custody determinations. Nowhere in his reasons does the trial judge mention
this doctrine or state that it is important for the child to be with the mother
during his early years. In other words, there is absolutely nothing to give
any indication that the trial judge even considered the tender years doctrine.
As for other stereotypical views, the respondents argue that the trial judge
incorrectly relied upon stereotypical views of Mr. Edwards as a Black man or as
a Black basketball player. It is important to stress that nothing stated by
Warren J. indicates a bias against Black people in general or Black basketball
players in particular. The respondents rely upon Warren J.’s statements at
trial during the cross examination of Dr. Korpach and argue that these indicate
that he looked at Mr. Edwards only as a Black athlete. However, as noted by
counsel for the appellant in reply, these statements were made as a result of
the witness’s reference to the influences that the respondents’ culture had on
his parenting abilities. As a result of this testimony, the court asked
several questions related to this cultural impact.
35
When one reconsiders the decision of Warren J. in light of the
appropriate test for appellate review, there is no indication from his reasons
that he made any material error or ignored any relevant evidence. Warren J.
discussed all factors listed in s. 24 of the Act. It was not the role of the
Court of Appeal to reconsider the evidence and determine if the trial judge
properly weighed the evidence discussed in his reasons.
II. The Importance of Race in the Custody
Determination of a Child of Mixed Racial Heritage
36
The Court of Appeal found that the trial judge gave “no consideration”
to issues of race and interracial problems that Elijah might face. In fact,
the trial judge noted that there had been some testimony at trial related to
the race of Elijah and the importance of being exposed to his heritage and
culture as the son of an African-American father. Rather than discussing the
child’s race in detail, however, the trial judge noted that this child is of
mixed race and, as such, his Caucasian Canadian heritage must also be
considered.
37
The interveners, the African Canadian Legal Clinic, the Association of
Black Social Workers and the Jamaican Canadian Association, submit that race is
a critical factor in custody and access cases. In my view, the importance of
this factor will depend greatly on many factual considerations. The
interveners state that there are key tools a Canadian biracial child will need
in order to foster racial identity and pride: the need to develop a means to
deal with racism and the need to develop a positive racial identity. The
corollary to these needs is the parental ability to meet them. The interveners
do not state that the minority parent should necessarily be granted custody;
rather, the question is which parent will best be able to contribute to a
healthy racial socialization and overall healthy development of the child.
This question is one of fact to be determined by the courts on a case-by-case
basis and weighed by the trial judge with other relevant factors.
38
The interveners submit that, although some studies show that Black
parents are more likely to be aware of the need to prepare their children to
cope with racism, the main issue is which parent will facilitate contact and
the development of racial identity in a manner that avoids conflict, discord
and disharmony. But again, this is only one factor to be considered by the
trial judge. I would also add that evidence of race relations in the relevant
communities may be important to define the context in which the child and his
parents will function. It is not always possible to address these sensitive
issues by judicial notice, even though some notice of racial facts can be
taken; see R. v. Williams, [1998] 1 S.C.R. 1128. The weight to be given
to all relevant factors is a matter of discretion, but discretion must be exercised
with regard to the evidence. In essence, the interveners argue that race is
always a crucial factor and that it should never be ignored, even if not
addressed by the parties. They favour forced judicial consideration of race
because it is essential in deciding which parent is best able to cope with
difficulties biracial children may face. This approach is based on the
conclusions reached concerning the present state of race relations in Canada.
As I have said, racial identity is but one factor that may be considered in
determining personal identity; the relevancy of this factor depends on the
context. Other factors are more directly related to primary needs and must be
considered in priority (see R. G. McRoy and C. C. Iijima Hall, “Transracial
Adoptions: In Whose Best Interest?”, in Maria P. P. Root, ed., The
Multicultural Experience (1996), 63, at pp. 71-73). All factors must be
considered pragmatically. Different situations and different philosophies
require an individual analysis on the basis of reliable evidence.
39
There is also a distinction between the role of race in adoption cases
and those cases involving two biological parents desiring custody; see G.
Pollack, “The Role of Race in Child Custody Decisions Between Natural Parents
Over Biracial Children” (1997), 23 N.Y.U. Rev. L. & Soc. Change 603,
at p. 617. In adoption cases, the situation might arise whereby the court must
make an either/or decision; in other words, the child is either granted or
denied exposure to his or her own heritage. Here, however, we have two
biological parents, each of whom shares a part of the race and culture of the
child. Of these two biological parents, one will be granted custody and one
will be granted access. The result here is that Elijah will have exposure to
both sides of his racial and cultural heritage. There was no evidence
introduced to suggest that greater exposure to one’s racial background through
custody as opposed to access is in the better interests of the child in every
case. Consequently, cultural concerns are not the same as those involving
prospective adoptive parents who do not share the same race and culture as the
child. This said, I wish to note that the approach taken in this case is not
new. In H. (D.) v. M. (H.), [1997] B.C.J. No. 2144 (QL)
(S.C.), (subsequently conf’d by [1999] 1 S.C.R. 328), Bauman J. considered a
case involving an adoption dispute between two sets of grandparents: the
mother’s biological father and her adoptive parents. The mother of the child
was aboriginal and the father was African American. The mother’s adoptive
parents were Caucasian and her biological father was aboriginal. In that case,
counsel for the child’s biological grandfather argued that the child’s
aboriginal heritage should be given great weight especially in light of the Child,
Family and Community Service Act, R.S.B.C. 1996, c. 46, which notes the
importance of cultural identity of aboriginal children in consideration of
their well-being. Bauman J. stated, at paras. 46 and 47, that the child’s
aboriginal heritage and the ability of his biological grandfather to
preserve and enhance it are important considerations, but we must not overlook
the obvious fact that Ishmael has an African-American background and American
citizenship. That heritage is also of importance and it is equally deserving
of preservation and nurturing. This is not a case of taking an aboriginal
child and placing him with a non-aboriginal family in complete disregard for
his culture and heritage. . . .
. . . The submission that Ishmael’s
aboriginal heritage is virtually a determining factor here, oversimplifies a
very complex case. [Emphasis added.]
He next
proceeded to consider all factors which impact the best interests of the child,
including his aboriginal heritage and, having weighed all these factors,
decided that the parenting and family environment of the mother’s adoptive
parents was superior and better served the child’s best interests. This Court
upheld this decision. It is therefore clear that, even in adoption cases where
it might play a more important role, race is not a determinative factor and its
importance will depend greatly on the facts.
40
Race can be a factor in determining the best interests of the child
because it is connected to the culture, identity and emotional well-being of
the child. New Brunswick, for example, has adopted legislation
prescribing mandatory consideration of “cultural and religious heritage” for
all custody determinations (Family Services Act, S.N.B. 1980, c. F-2.2,
ss. 1 and 129(2)). British Columbia has included similar language in its
provisions regarding adoption, but not in those found in the Family
Relations Act applicable in this case (Adoption Act, R.S.B.C. 1996,
c. 5, s. 3). The adoption and custody contexts may differ because the adopted
child will generally cease to have contact with the biological parent while
custody will generally favour contact with both parents. Nevertheless, it is
generally understood that biracial children should be encouraged to positively
identify with both racial heritages. This suggests the possibility of a
biracial identity (i.e. “forming an identity that incorporates . . .
multiple racial heritages”, see Pollack, supra, at p. 619). It is
important that the custodial parent recognize the child’s need of cultural
identity and foster its development accordingly. I would therefore agree that
evidence regarding the so-called “cultural dilemma” of biracial children (i.e.
the conflict that arises from belonging to two races where one may be dominant
for one reason or another) is relevant and should always be accepted. But the
significance of evidence relating to race in any given custody case must be
carefully considered by the trial judge. Although general public information
is useful, it appears to be often contradictory (T. L. Perry, “The
Transracial Adoption Controversy: An Analysis of Discourse and Subordination”
(1993-94), 21 N.Y.U. Rev. L. & Soc. Change 33, at p. 59), and may
not be sufficient to inform the judge about the current status of race
relations in a particular community or the ability of either applicant to deal
with these issues.
41
For the Court of Appeal to intervene, it would have to find a material
error. Although Warren J. did not discuss in detail the role that race plays
in determining the best interests of the child, he did state that there is an
overarching need for the child to be in a stable and loving environment. The
limited findings of the trial judge on this issue reflected the minimal weight
that the parties themselves placed on the issue at trial. Therefore,
notwithstanding the role that race may play in custody determinations, it
appears that the trial judge noted that this issue was not determinative and
that, in this case, Elijah would be in a more stable and loving environment if
custody was granted to the appellant. He clearly considered the mixed race of
Elijah and implied that race may impact s. 24(1)(a) in some cases; however, the
trial judge obviously was of the view that, even if the biological father
provided some benefits as regards fostering a positive racial identity, these
benefits did not outweigh the negative findings related to him. By intervening
in the consideration of race by the trial judge, the Court of Appeal failed to
apply the correct standard of review. It should not have intervened; this
issue was given disproportionate emphasis at the initiative of the Court of
Appeal.
42
In this case, there was absolutely no evidence adduced which indicates
that race was an important consideration. As noted by the appellant in her
factum, there was essentially no evidence of racial identity by reason of skin
colour or of race relations in Vancouver or North Carolina; there was no
evidence of the racial awareness of the applicants or of their attitudes
concerning the needs of the child with regard to racial and cultural identity.
The issues of race and ethnicity were not argued at trial, nor were written
submissions provided in the appeal. The sole evidence relied upon by the
respondents in this Court was a blanket statement by Mrs. Edwards that the
appellant could not teach Elijah what it was to be Black and the testimony of
Dr. Korpach that Elijah would likely be considered to be of Black colour. The
Court of Appeal acknowledged this, at para. 48, where it stated:
Perhaps because of the sensitivity of racial and cultural factors,
counsel made very little reference to these matters, although Mrs. Edwards was
asked in cross-examination whether she agreed that Elijah’s “heritage” was a
“complicating issue” between the two parents.
43
In fact, in this Court, counsel for the respondents stated that “neither
of the parties wanted to touch it, because it’s so politically incorrect
to say that race has any bearing” (emphasis added). This is an unacceptable
reason for counsel to fail to raise evidence on a factor that he or she
believes may impact the best interests of the child. Without evidence, it is
not possible for any court, and certainly not the Court of Appeal, to make a
decision based on the importance of race. Unfortunately, this is what the
Court of Appeal did when Newbury J.A. stated, at para. 50: “If it is correct
that Elijah will be seen by the world at large as ‘being black’, it would
obviously be in his interests to live with a parent or family who can nurture
his identity. . . .” She further stated, at para. 51:
. . . it seems to me likely that being raised in an
Afro-American family in a part of the world where the black population is
proportionately greater than it is here, would to some extent be less difficult
than it would be in Canada. Elijah would in this event have a greater chance
of achieving a sense of cultural belonging and identity and would in his father
have a strong role model who has succeeded in the world of professional sports.
III. The
Addition of Mrs. Edwards as a Custodial Applicant at the Court of Appeal
44
The trial was conducted from October 1998 to January 1999. The Family
Relations Act was amended to add ss. 24(1.1) and 35(1.1) on December 8,
1998. The respondent Mrs. Edwards did not apply to become a custodial parent
at this time. The trial judge mentioned that Mrs. Edwards had no custody
rights to Elijah and made his order accordingly.
45
During the Court of Appeal hearing, the Court of Appeal itself invited
counsel to make a custody application on behalf of Mrs. Edwards. The Court of
Appeal later found that the trial judge had erred in stating that Mrs. Edwards
had no custody rights. It found that the amended legislation allowed for her
to request and be granted custody, and that procedural requirements were not an
important impediment since Mrs. Edwards had been questioned at length at trial
and the court had parens patriae jurisdiction to act in the best
interests of the child.
46
When faced with a custody determination, the role of the Court of Appeal
is to analyse the trial decision in its proper context. In other words, in
making its decision, it must take notice of the persons who are the actual
parties before the court. Mrs. Edwards did not apply for custody during the
trial. As a result, it can hardly be said that Warren J. erred in not awarding
joint custody to her and Mr. Edwards.
47
The Court of Appeal relied upon its parens patriae jurisdiction
to award custody to a new party together with Mr. Edwards; in my view, adding a
party on the initiative of the Court of Appeal is unfair to other parties and
does not fall within the court’s supervisory role. Parens patriae
jurisdiction does not justify the avoidance of the rules of civil procedure.
The respondents rely on Rule 15(5) of the British Columbia Supreme Court
Rules, Reg. 221/90, which states:
Rule
15 – Change of Parties
.
. .
(5) (a) At any stage of a proceeding, the
court on application by any person may
. . .
(ii) order that a person, who ought to have
been joined as a party or whose participation in the proceeding is necessary to
ensure that all matters in the proceeding may be effectually adjudicated upon,
be added or substituted as a party, and
(iii) order that a person be added as a party
where there may exist, between the person and any party to the proceeding, a
question or issue relating to or connected
(A) with any relief claimed in the proceeding, or
(B) with the subject matter of the proceeding,
which in the opinion of the court it would be just and convenient to
determine as between the person and that party.
48
For Mrs. Edwards to be added in accordance with Rule 15, the court must
find that she “ought to have been joined” or “is necessary”. I do not believe
that it can be said that it was “necessary” that she become a party to the
proceedings or that she “ought to have been joined” as a party. Rule 15(5)(a)
is meant to cover situations where it is practically necessary for a person to
be added as a party for the proper determination of the case; in a custody
case, where the trial judge finds that both biological parents are suitable,
even though they might not be perfect parents, it is not necessary for others
to be added as parties, and the court should not try to find on its own a
better party to whom custody should be granted. There is no indication that the
trial judge in the case at bar erred in this regard, and there is therefore no
reason for appellate intervention.
49
In this case, Mrs. Edwards, who was not a party, did not apply for
custody at trial, and it was wrong for the Court of Appeal to initiate this
process. The parties were Mr. Edwards and Ms. Van de Perre. In
suggesting that Mrs. Edwards apply for custody, the Court of Appeal essentially
added a party to a custody dispute on its own initiative. If Mrs. Edwards was
to be considered, it would have to be by the trial judge, and a decision would
have to be taken in light of all relevant evidence and pursuant to a
satisfactory cross-examination on that basis. In the circumstances, since Mrs.
Edwards was the cornerstone of her husband’s case, she had little choice but to
apply for custody after the intervention by the appellate court; otherwise, she
would have risked irreparable damage to her husband’s case. The Court of
Appeal had no power to intervene in such a manner and, as a result, exceeded its
jurisdiction.
50
It should also be noted that, even if the Court of Appeal had been
correct in finding that the trial judge should have added Mrs. Edwards by
reason of the court’s parens patriae jurisdiction, it still exceeded its
jurisdiction in finding that the trial judge would have awarded custody to Mr.
and Mrs. Edwards jointly, had Warren J. not made this supposed error. Custody
determinations are necessarily decisions of mixed law and fact. Even if it
were possible in law to allow the pleadings to be amended and award custody to
Mrs. Edwards jointly with her husband, this consideration is only the legal
aspect of a custody decision; it does not deal with the findings of fact. The
only statement made by the trial judge as to Mrs. Edwards’ ability to parent
Elijah was that if left to her alone, she would fulfill Elijah’s best
interests. The Court of Appeal inferred from this statement that if the trial
judge believed he could grant custody to Mr. and Mrs. Edwards, he would have.
The Court of Appeal stated, at para. 44:
. . . I do not believe the procedural deficiency should preclude a
custody award in favour of Mr. and Mrs. Edwards jointly. As I read the
trial judge’s Reasons, this was the outcome he would have preferred, from the
viewpoint of Elijah’s best interests, had he thought that option was available.
[Emphasis added.]
51
Although the trial judge thought very highly of Mrs. Edwards and her
parenting ability, he never stated that he would prefer to grant custody
to Mrs. Edwards along with Mr. Edwards. Rather, the trial judge said
that Mrs. Edwards alone satisfies Elijah’s best interests. The trial
judge did not think highly of Mr. Edwards, nor did he think his unstable family
unit was in the best interests of the child. The Court of Appeal erred in
making this finding of fact, which is contrary to the actual findings of the
trial judge. If it was open to the Court of Appeal to add Mrs. Edwards as a
party, which it was not, this should have been returned to trial for a determination
of the best interests of the child. Upon return to trial, evidence should have
been adduced concerning the impact of such a decision. As noted by the
appellant, at para. 119 of her factum, the Court of Appeal heard and allowed no
argument on this issue. I also note in passing that a contest between
biological parents and non-parents gives rise to special considerations which
were not addressed here; see King v. Low, [1985] 1 S.C.R. 87; J.R. v.
D.W., [1992] B.C.J. No. 1610 (QL) (S.C.); L. (A.) v. K. (D.),
supra, at para. 25.
52
Given the above conclusions, the appeal is allowed. The judgment of the
British Columbia Court of Appeal is set aside with costs throughout and the
decision of Warren J. is restored.
Appeal allowed with costs.
Solicitors for the appellant: Bayshore Law Group,
Vancouver.
Solicitors for the respondents: Maxwell, Schuman &
Company, Vancouver.
Solicitor for the interveners: African Canadian Legal Clinic,
Toronto.