Top* Vancouver Calgary Child Parenting Appeal Lawyers review child custody judgments for palpable and overriding errors of fact and errors of law. Vancouver and Calgary child parenting time disputes involve emotionally charged disputes where trust is often strained if not non-existent. The best Vancouver Calgary child parenting Appeal Lawyers know that the results of trials of these disputes can be unsatisfactory to one or both parties.
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Vancouver Calgary Child Parenting Appeal Lawyers Explain What Must Be Shown To Win An Appeal
What is the legal test to set aside a trial judgment a parent is dissatisfied with? Our skilled Vancouver Calgary Child Parenting Appeal Lawyers just read an interesting case from our Court of Appeal that explains deference given to the trial judge that heard all the evidence and had a chance to see the witnesses and expert give their evidence and be cross examined.
In the recent case of L.C.T. v. R.K., 2017 BCCA 64 allegations of sexual abuse and parental alienation a trial judge listened to multiple experts and heard 27 days of evidence and pronounced judgment largely in favour of the father. The mother appealed but save for a minor correction to the amount of child support based on the strictness of the undue hardship test her appeal was dismissed.
Vancouver Calgary Child Parenting Appeal Lawyers
Paragraph 3 of the BC Appeal Court reasons set out what happened at trial:
Following a 27-day trial in 2015, the judge determined that it was in the best interests of the children to have unsupervised parenting time with the respondent. The judge accepted the opinions of two psychologists who prepared court-ordered reports pursuant to s. 15 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], and s. 211 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], respectively. Both psychologists recommended that the respondent’s parenting time be unsupervised. The judge found that the appellant was not a credible witness. He preferred the evidence of the respondent and his witnesses.
The BC Appeal Court went on to provide family law clients and Vancouver Calgary Child Parenting Appeal Lawyers with a tight explanation of when an Appeal will succeed and when it will fail:
A. Parenting Time and Guardianship
i. Standard of Review
[22] The appellant says that the errors made by the judge are questions of mixed fact and law and should be reviewed by this Court on a reasonableness standard of review. I do not agree. The main contested facts in this case concerned allegations that the respondent inappropriately touched the children and that he was violent towards the appellant. These are questions of fact. The judge’s conclusions on these questions of fact are subject to a standard of review of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 at para. 10. The judge’s findings on the contested facts were informed by his assessment of the credibility of the parties. Findings of credibility are also subject to a standard of review of palpable and overriding error: H.L. v. Canada (Attorney General), 2005 SCC 25 at para. 56. Questions of law are reviewed on a standard of correctness: Housen at para. 8.
[23] The application of a legal standard – such as the best interests of the children – to the findings of fact made by the judge is a question of mixed fact and law reviewable on a standard of palpable and overriding error unless it is clear that some extricable error was made by the judge with respect to the characterization of the legal standard or its application, which amounts to an error of law, that is subject to a standard of correctness: Housen at paras. 32–33.
[24] In Benhaim v. St-Germain, 2016 SCC 48, the Supreme Court of Canada restated these principles of deference to trial judges’ findings of fact and credibility. In a passage that is apt to this lengthy fact-driven case, the Court said:
Standard of Review
[36] The standard of review is correctness for questions of law, and palpable and overriding error for findings of fact and inferences of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 19; St-Jean, at paras. 33-36. …
[37] It may be useful to recall the many reasons why appellate courts defer to trial courts’ findings of fact, which were described at length in Housen, at paras. 15-18. Deference to factual findings limits the number, length and cost of appeals, which in turn promotes the autonomy and integrity of trial proceedings. Moreover, the law presumes that trial judges and appellate judges are equally capable of justly resolving disputes. Allowing appellate courts free rein to overturn trial courts’ factual findings would duplicate judicial proceedings at great expense, without any concomitant guarantee of more just results. Finally, according deference to a trial judge’s findings of fact reinforces the notion that they are in the best position to make those findings. Trial judges are immersed in the evidence, they hear viva voce testimony, and they are familiar with the case as a whole. Their expertise in weighing large quantities of evidence and making factual findings ought to be respected. These considerations are particularly important in the present case because it involves a large quantity of complex evidence.
[38] It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46:
[46] Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
[39] Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 (CanLII), [translation] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions.”
[25] In the context of parenting decisions, the decisions of a trial judge must be given considerable deference because they are inherently discretionary. An appellate court should interfere only when there is a material error, a serious misapprehension of the facts, or an error in law. In R.E.Q. v. G.J.K. 2012 BCCA 146, Newbury J.A. described the standard of review at para. 33:
[33] The most important matter, of course, is the children’s residence. 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, [2001] 2 S.C.R. 1014 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.]
[26] On this appeal I conclude that I must apply a deferential standard to the findings of fact and credibility, and also to the judge’s discretionary decision as to parenting time and conditions. I will apply a correctness standard to any extricable questions of law.
Vancouver Calgary Child Parenting Appeal Lawyers can help you determine if the complex test of palpable and overriding error related to fact finding or errors of law related to child custody, parenting time and child contact and access issues is met.
Our Vancouver Calgary Child Parenting Appeal Lawyers act both for the Appellant and Respondent and have successfully handled cases in the BC Court of Appeal and were successful counsel for Ms. Young in the leading “maximum contact” Supreme Court of Canada decision of Young v Young.
