Vancouver Calgary Custody Appeal Lawyers
The Vancouver Calgary Custody Appeal Lawyers of MacLean Family Law handle appeals to the BC Court of Appeal, Alberta Court of Appeal and the Supreme Court of Canada. Call us across BC and from Calgary toll free at 1-877-602-9900 if you have a Calgary or Vancouver family law appeal.
Our top rated Vancouver Calgary Custody Appeal Lawyers are led by Lorne N. MacLean, QC, the winning counsel for Ms. Young in Canada’s precedent setting “maximum contact of the child with both parents”case of Young v Young.
Vancouver Calgary Custody Appeal Lawyers explain to potential parties to an appeal, that the test to win an appeal of a child custody decision made in Alberta or BC is a stringent one. Roughly 25% of Vancouver and Calgary Custody Appeals are successful meaning 75% fail. Appeals prolong the uncertainty for ex-spouses and their children and can be expensive. Measured against these factors must be preventing the prejudice to the best interests of the children that can occur in a wrongly decided child parenting time and custody decision.
Vancouver Calgary Custody Appeal Lawyers
Vancouver Calgary Custody Appeal Lawyers provide prospective appellants the following cogent statement of the law to be applied in a Vancouver Calgary Custody Appeal from the recent BC Supreme Court decision of B.H. v. R.S. :
Standard of Review on Appeal
[8] The Supreme Court of Canada has made it clear that on appellate review of trial decisions that involve the care and well-being of children the decisions of trial judges are given considerable deference. That deference means that a trial judge’s decision should only be interfered with if there is a material error, a serious misapprehension of the evidence, or an error of law. (Van de Perre v. Edwards, 2001 SCC 60; Hickey v. Hickey, [1999] 2 S.C.R. 518).
[9] As noted in Hickey at para. 10:
[10] … Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
[10] More particularly, when addressing the interests of children the British Columbia Court of Appeal in K.M.W. v. L.J.W., 2010 BCCA 572, in reference to Van de Perre stated at para. 51:
[51] On appeal, the children’s interests must remain the focal point of the hearing. The fairness and efficacy of the trial process must be reviewed with that same focus, less bounded by strict procedural rules than in another type of civil appeal, and mindful of the narrow scope of appellate review of custody decisions set down in Van de Perre v. Edwards, …
[11] The rationale for this narrowed basis for appellate intervention is it “promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge” (Hickey at para. 12) as “[t]he 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.” (Van de Perre at para. 12; also see Kanwar v. Kanwar, 2010 BCCA 407 at para. 18.)
[12] In addition, in Rick v. Brandsema, 2009 SCC 10, the Supreme Court of Canada said this about findings of fact in family matters:
[30] It is inherent in disputes generally, and matrimonial conflicts in particular, that parties have inconsistent versions of the underlying events. It is the trial judge’s job as judicial historian to sift through the record, watch and listen to the parties, and determine which version of disputed events is the most reliable. Findings of fact and factual inferences made at trial, as a result, are not to be reversed unless there is “palpable and overriding error”, or a fundamental mischaracterization or misappreciation of the evidence (Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802, at p. 808; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-18; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 52-76).
[13] More recently in Fotsch v. Begin, 2015 BCCA 403, the British Columbia Court of Appeal stated:
[66] It is well established that an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a demonstrated material error of law or fact, a serious misapprehension of the evidence, or a decision that is “clearly wrong”. See Van De Perre v. Edwards, 2001 SCC 60 at paras. 14-15; Falvai v. Falvai, 2008 BCCA 503at para. 18; and R.E.Q. v. G.J.K., 2012 BCCA 146 at para. 33. On appeal, “matters must be reviewed as they stood at the time of trial” (Scott at para. 25) or there would be no finality to the litigation. An appellate court is not a court of second instance.
[67] The parameters of this Court’s jurisdiction to interfere with an order in a family matter was helpfully summarized by Madam Justice Newbury in R.E.Q. v. G.J.K. at para. 33:
The Supreme Court of Canada has said that the standard of review is a high one, i.e., that in family cases as elsewhere, an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a material error (including a “significant misapprehension of the evidence”, the trial judge’s having “gone wrong in principle or [his] final award [being] … clearly wrong”): see Moge v. Moge[1992] 3 S.C.R. 813, at 832; and R.M.S. v. F.P.C.S. 2011 BCCA 53 at para. 43, citing Hickey v. Hickey[1999] 2 S.C.R. 518 at para. 12 and Van de Perre v. Edwards 2001 SCC 60 at paras. 14-5. In the latter case the Court wrote:
… 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. [At para. 13].
Thus the authorities make it clear that it is not for an appellate court to re-weigh the evidence or to interfere on the basis that the appellate court would give more weight than the trial judge did to one factor or another — or, in the words of the Court in Hickey, that it would have “balanced the factors differently.”
[Emphasis added.]
See also Falvai at para. 18.
[68] In short, appellate courts must treat a trial judge’s findings of fact with deference. Those findings and the drawing of evidentiary conclusions from the findings of fact “is the province of the trial judge, not the Court of Appeal.” See Housen v. Nikolaisen, 2002 SCC 33 at para. 24. In a strongly worded introduction, Justices Iacobucci and Major in Housen jointly reiterated this limitation in the appellate review jurisdiction:
[1] A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion.…
[3] The role of the appellate court was aptly defined in Underwood v. Ocean City Realty Ltd.(1987), 12 B.C.L.R. (2d) 199 (C.A.), at p. 204, where it was stated:
The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.
[Emphasis added.]
Vancouver Calgary Custody Appeal Lawyers Can Guide You
Our Vancouver Calgary Custody Appeal Lawyers know that child custody and parenting time disputes are emotional and sometimes a judgment feels like it isn’t right. We’ll provide an objective analysis of whether an appeal is justified and if it is we’ll put together a proper appeal argument to increase the chances of a successful child custody, parenting time, relocation or guardianship appeal.
