K.V.P. v. T.E. (2001), 275 N.R. 52 (SCC)
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[French language version follows English language version]
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Temp. Cite: [2001] N.R. TBEd. SE.025
K.V.P. (appellant) v. T.E. and V.C.E. (respondents) and The African Canadian Legal Clinic, The Association of Black Social Workers and The Jamaican Canadian Association (intervenors)
(27897; 2001 SCC 60)
Indexed As: K.V.P. v. T.E.
Supreme Court of Canada
McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
September 28, 2001.
Summary:
The unmarried parents of an infant boy each sought custody. The mother was a single Caucasian. The father was an African-American, who was a professional basketball player and was married to someone else.
The British Columbia Supreme Court, in a judgment reported [1999] 5 B.C.T.C. 1, awarded sole custody to the mother. The father appealed.
The British Columbia Court of Appeal, in a judgment reported 136 B.C.A.C. 21; 222 W.A.C. 21, allowed the appeal and awarded custody to the boy’s father and his wife (who was added as a party at the court’s suggestion). The mother appealed. The issues were the applicable standard of review by appellate courts in custody cases, whether the Court of Appeal erred in finding that the trial judge erred in his consideration (or lack thereof) of the boy’s mixed racial heritage and whether the Court of Appeal erred in adding the father’s wife as a party.
The Supreme Court of Canada allowed the appeal and restored the trial judge’s decision granting custody to the mother. Applying the appropriate test for appellate review, the trial judge made no material error and did not ignore relevant evidence. Accordingly, the Court of Appeal was not entitled to reconsider the evidence and determine whether the trial judge properly weighed the evidence discussed in his reasons. The Court of Appeal also erred in adding the father’s wife as a party.
Courts – Topic 2004
Jurisdiction – General principles – Inherent jurisdiction (incl. parens patriae jurisdiction) – [See
Family Law – Topic 2181
].
Family Law – Topic 1887
Custody and access – Considerations in awarding custody – Child’s race or colour -A Caucasian mother (single) and an African-American basketball player (married) had an extra-marital affair which resulted in the 1997 birth of their son – The trial judge awarded custody to the mother – The appellate court awarded custody to the father – On further appeal, intervenors submitted that race was always a critical factor in custody cases – The Supreme Court of Canada stated that the importance of race in the custody determination of a child of mixed racial heritage varied based on the factual considerations of the case – However, race was only one factor to be considered – The court stated that “the main issue is which parent will facilitate contact and the development or racial identity in a manner that avoids conflict, discord and disharmony. … racial identity is but one factor that may be considered in determining personal identity; the relevancy of this factor depends on the context. Other factors are more directly related to primary needs and must be considered in priority.” – See paragraphs 37 to 38.
Family Law – Topic 1889
Custody and access – Considerations in awarding custody – Capacity or conditions of parents – A mother (single) and a father (married) had an extra-marital affair which resulted in the 1997 birth of their son – The Supreme Court of Canada stated that “a trial judge cannot give custody to a father merely because his wife is a good mother. Her presence is a factor but, overall, the court must consider if the applicant would make a good father in her absence. … it is [the father’s] personal capacity to exercise custody that must be considered, and the support provided by his wife is but a factor to be weighed in assessing these parental abilities.” – See paragraph 30.
Family Law – Topic 1891
Custody and access – Considerations in awarding custody – Conduct of parents – The Supreme Court of Canada stated that “past or present conduct by a parent that does not, in the words of the [Family Relations] Act, ‘substantially affect’ the best interests of the child has no bearing on a custody determination and does not require comment.” – See paragraph 32.
Family Law – Topic 1916
Custody and access – Appeals – Standard of review – A mother was awarded custody – An appellate court, in allowing the father’s appeal and awarding custody to him, stated that the best interests of the child prevailed over the interests of the parents and society in finality and that the appellate court could intervene even absent serious errors by the trial judge – The Supreme Court of Canada held that the appellate court erred – The court restated that “though an appeal court must intervene when there is a material error, or an error in law, it is not entitled to overturn a [custody] order simply because it would have made a different decision or balanced the factors differently” – The appellate court “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. … the approach to appellate review requires an indication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of the factors. In such a case, an appellate court may review the evidence proffered at trial to determine if the trial judge ignored or misdirected himself with respect to relevant evidence. … an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence.” – The court restored custody to the mother – See paragraphs 12 to 15.
Family Law – Topic 2181
Custody and access – Practice – Parties – A Caucasian mother (single) and an African-American basketball player (married) had an extra-marital affair which resulted in the 1997 birth of their son – The mother and father battled for custody – The father’s wife was not a party – On an appeal of the trial judge’s decision awarding custody to the mother, the appellate court, on its own motion, suggested (and then permitted) the father’s wife to be added as a party seeking custody jointly with the father – The Supreme Court of Canada held that “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. Parens patriae jurisdiction does not justify the avoidance of the rules of civil procedure. … The Court of Appeal had no power to intervene in such a manner and, as a result, exceeded its jurisdiction.” – See paragraphs 44 to 49.
Practice – Topic 607
Parties – Adding or substituting parties – General principles – Power of court to add parties – [See
Family Law – Topic 2181
].
Cases Noticed:
Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, appld. [para. 11].
A.L. and J.L. v. D.K. and M.W. (2000), 141 B.C.A.C. 287; 231 W.A.C. 287; 190 D.L.R.(4th) 108 (C.A.), refd to. [para. 12].
Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 14].
Van Mol et al. v. Ashmore (1999), 116 B.C.A.C. 161; 190 W.A.C. 161; 168 D.L.R.(4th) 637 (C.A.), refd to. [para. 15].
Tyabji v. Sandana (1994), 2 R.F.L.(4th) 265 (B.C.S.C.), refd to. [para. 34].
R. v. Williams (V.D.), [1998] 1 S.C.R. 1128; 226 N.R. 162; 107 B.C.A.C. 1; 174 W.A.C. 1, refd to. [para. 38].
N.H. et al. v. H.M. et al., [1997] B.C.J. No. 2144 (S.C.), revd. 103 B.C.A.C. 180; 169 W.A.C. 180 (C.A.), revd. [1999] 1 S.C.R. 328; 236 N.R. 173; 120 B.C.A.C. 252; 196 W.A.C. 252, refd to. [para. 39].
King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275, refd to. [para. 51].
J.R. v. D.W., [1992] B.C.J. No. 1610 (S.C.), refd to. [para. 51].
Statutes Noticed:
Family Relations Act, R.S.B.C. 1996, c. 128, sect. 24(1), sect. 24(3), sect. 24(4) [para. 9].
Rules of Court (B.C.), Supreme Court Rules, rule 15(5) [para. 47].
Authors and Works Noticed:
McRoy, R.G., and Hall, C.C. Iijima, Transracial Adoptions: In Whose Best Interests?, in The Multicultural Experience (1996), pp. 71 to 73 [para. 38].
Perry, T.L., The Transracial Adoption Controversy: An Analysis of Discourse and Subordination (1993-94), 21 N.Y.U. Rev. L. & Soc. Change 33, p. 59 [para. 40].
Pollack, G., The Role of Race in Child Custody Decisions between Natural Parents over Biracial Children (1997), 23 N.Y.U. Rev. L. & Soc. Change 603, p. 617 [para. 39].
Root, Maria P.P., The Multicultural Experience (1996), pp. 71 to 73 [para. 38].
Counsel:
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 intervenors, the African Canadian Legal Clinic, the Association of Black Social Workers and the Jamaican Canadian Association.
Solicitors of Record:
Bayshore Law Group, Vancouver, B.C., for the appellant;
Maxwell, Schuman & Co., Vancouver, B.C., for the respondents;
African Canadian Legal Clinic, Toronto, Ontario, for the intervenors, the African Canadian Legal Clinic, the Association of Black Social Workers and the Jamaican Canadian Association.
This appeal was heard on June 14, 2001, before McLachlin, C.J.C., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.
On September 28, 2001, Bastarache, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
