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First chance is best (for custody litigation).

Recently, the Supreme Court of Canada clarified some ground rules for custody litigation. In Van de Perre v. Edwards, the SCC addressed two main issues -- how important is race in deciding custody cases? And how much leeway does a Court of Appeal have to review a trial judge's decision?

Mr. Edwards, an African American, was a married father of two children and a professional basketball player who had an affair with a Caucasian Canadian, Ms. Van de Perre. They had a boy in September 1997. At the end of 1997, the mother applied in the BC court for custody and child support, and the father cross-applied for custody. Trial judge gave sole custody to the mother. He gave the father access for four weeks per year, shared holidays, and extra time when the father was in Vancouver.

Unhappy with the decision, the father appealed to the BC Court of Appeal. He said the trial judge made so many mistakes the decision should be reversed. He said the trial judge

* focussed only on his parenting shortcomings while ignoring the mother's

* did not properly consider his parenting ability

* ignored the mother's troubled family background (divorce, drug abuse)

* failed to consider the bonds that existed between the boy and his half-sisters who lived with the father

* improperly considered his extramarital affairs and their effect on the stability of his marriage

* improperly considered the parties' negative attitudes and views of each other

* may have acted improperly and applied the outdated "tender years" doctrine, that young children should be with their mother

* did not properly consider that the mother might deny him access in the future

* did not consider race and the interracial problems the boy might face growing up

* had a bias against Black people

The three judges of the Court of Appeal all agreed that the trial judge's assessment had been so one-sided that it could not be in the child's best interests. The BCCA reversed the decision and gave the father custody.

The mother appealed to the Supreme Court of Canada. She said that the BCCA applied the wrong test when it reviewed the trial judge's decision. The mother argued that the trial judge had not made a material error in evidence or law; he had considered everything that he needed to consider, and his decision should stand. She said that custody cases were no different from any other cases, and the BCCA was wrong to interfere just because those judges would have decided the case differently. The father maintained that the BCCA did the right thing and the trial judge was wrong.

At the Supreme Court, three parties applied for intervener status -- the African Canadian Legal Clinic, the Association of Black Social Workers, and the Jamaican Canadian Association (The SCC can allow interested parties to file documents and make submissions if it believe the interveners have worthwhile contributions to make). They all said that race is a critical factor in custody and access cases, and judges should never ignore it, even if the parents don't bring it up themselves. They said that the preferred parent for biracial children is the one who can develop the child's racial identity with the least amount of conflict. The interveners submitted some studies to show that Black parents are the most likely to be aware of the need to prepare their children to cope with racism.

All nine judges of the Supreme Court allowed the mother's appeal. They made the following points:

Appeal courts should not treat custody cases any differently than other cases. Judges cannot use the "best interests of the child" test as a way to bend the rules of civil procedure. Because the trial judge hears the evidence firsthand, he is best able to weigh it all and come to the best decision. Appeal courts should interfere only when the trial judge makes a material error, an error in law, or shows a serious misunderstanding of the evidence. The SCC said that it is very important that decisions affecting children are final. All parties, especially the children, need to get on with their lives. This means that appeal courts should show more respect for a trial judge's decision in a custody case than they would in other cases.

Race is just one of many factors a trial judge must consider. Its relevance depends on all of the circumstances. Factors directly related to the child's primary needs are always more important than race. So, if one parent can't give the child adequate basic care (food, clothing, shelter), then it doesn't matter what race anyone is -- the child will go to the parent who can meet those basic needs. Secondly, the SCC said that the parties must give evidence on the race issue at trial. It could be direct evidence by the parties as to their own experiences, expert evidence about race relations in the local community, or even judicial notice of racial facts. Here, the SCC found that the parents did not put forward any evidence at trial showing that race was an important consideration. The parents did not argue any racial issues before the trial judge. Without that evidence, deciding a case based on race is impossible for a trial court or an appeal court.

This decision affects every custody case, whether or not race is a factor:

* At trial, make sure you introduce every bit of evidence you intend to rely on, because you cannot cover new ground or introduce new arguments on appeal. If the trial judge didn't hear it, the appeal court won't either. Be sure you have evidence on every issue you want to argue.

* Be mindful of the rules of civil procedure in your province. You can't bend the rules for a custody case.

* Realistically, you have only one chance to make your custody case. If you don't succeed at trial, an appeal court is unlikely to change the outcome.

* With a biracial child, race is only one factor the judge will consider in determining what is in the child's best interests.
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Author:Boll, Rosemarie
Date:Feb 1, 2002
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