Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60, 2001 SCC 60 (2001)

Supreme Court of Canada

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Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60, 2001 SCC 60 (2001)

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 th...

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