J.J.P.D. v. A.R.F.,

• Judge: Brown,Hughes,McDonald
• Neutral Citation: 2014 ABCA 433
• Citation: (2014), 588 A.R. 228,2014 ABCA 433,588 AR 228,(2014), 588 AR 228,588 A.R. 228
• Date: 01 December 2014
• Court: Court of Appeal (Alberta)

J.J.P.D. v. A.R.F. (2014), 588 A.R. 228; 626 W.A.C. 228 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. DE.085

J.J.P.D. (respondent/appellant) v. A.R.F. (appellant/respondent)

(1401-0138-AC; 2014 ABCA 433)

Indexed As: J.J.P.D. v. A.R.F.

Alberta Court of Appeal

McDonald and Brown, JJ.A., and Hughes, J.(ad hoc)

December 15, 2014.

Summary:

A Provincial Court judge granted sole decision-making authority and primary parenting to the mother, with specified access to the father. A Queen's Bench judge, sitting as an appeal court under the Family Law Act, overturned the Provincial Court decision and reinstated the previous shared parenting arrangement, leaving the decision-making to the parties to decide within 30 days. The mother applied for leave to appeal under Queen's Bench Rule 12.71.

The Alberta Court of Appeal, per McDonald, J.A., in a decision reported at 580 A.R. 158; 620 W.A.C. 158, granted leave to appeal.

The Alberta Court of Appeal allowed the appeal, set aside the appeal judge's order and restored the trial judge's decision.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - A Provincial Court judge granted sole decision-making authority and primary parenting to the mother with specified access to the father - The father appealed the decision to the Court of Queen's Bench, which overturned the trial judge's decision, reinstated the previous shared parenting arrangement, and left the decision-making to the parties to decide within 30 days - On appeal, the Alberta Court of Appeal reinstated the trial judge's decision - The appeal judge erred in not restricting his role to that properly assigned to an appeal judge in cases such as this - Rather, he embarked upon a re-evaluation of the issues on the merits - Further, during the course of the hearing before the appeal judge, the father conceded that he was not taking issue with the portion of the trial judge's decision wherein he gave the final decision-making power to the mother - Indeed, the appeal judge expressly acknowledged this in his oral reasons - Obviously, such a concession did not ipso facto bind an appeal judge - However, that concession together with the absence of evidence to suggest that the trial judge made any material error in coming to his decision, represented an error on the part of the appeal judge in allowing the appeal and referring the matter back to the parties to come up with a proposed list of responsibilities themselves.

Cases Noticed:

C.C. v. A.W., [2007] A.R. Uned. 667; 47 R.F.L.(6th) 144; 2007 ABQB 732, dist. [para. 10].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 13].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199 (C.A.), refd to. [para. 13].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 19].

Counsel:

C. Thompson, for the appellant;

D. Harms and I.T. Libin, for the respondent.

This appeal was heard on December 1, 2014, by McDonald and Brown, JJ.A., and Hughes, J.(ad hoc), of the Alberta Court of Appeal, who filed the following memorandum of judgment at Calgary, Alberta, on December 15, 2014.