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

Docket Number:27897

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...

To continue reading