Citation:

Scheiber v. Phyall

Date: 20020702

 

2002 BCCA 409

Docket:

CA029257

 

COURT OF APPEAL FOR BRITISH COLUMBIA

 

BETWEEN:

 

LIISA SCHEIBER

 

APPELLANT

(PETITIONER)

 

AND:

 

CHRISTIAN JOHN PHYALL

 

RESPONDENT

(RESPONDENT)

 

 

 

Before:

The Honourable Mr. Justice Esson

 

The Honourable Madam Justice Prowse

 

The Honourable Madam Justice Levine

 

 

B.R. Vining

Counsel for the Appellant

W.E. Whyard

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

June 21, 2002

 

Place and Date of Judgment:

Vancouver, British Columbia

July 2, 2002

 

Written Reasons by:

The Honourable Madam Justice Prowse

 

Concurred in by:

The Honourable Mr. Justice Esson

The Honourable Madam Justice Levine

Reasons for Judgment of the Honourable Madam Justice Prowse:

 

 

[1]         On November 22, 2001, Madam Justice Dillon made an order dismissing Ms. Scheiber's application to vary the existing joint custody and access order between the parties to permit Ms. Scheiber to move with Liam, the six and one-half year-old son of the parties, from Powell River, British Columbia to Mill Bay, British Columbia.  At that time, Madam Justice Dillon also granted Mr. Phyall's application to change the primary residence of Liam from Ms. Scheiber to Mr. Phyall, with a corresponding variation of access.  Ms. Scheiber is appealing from those orders.

[2]         As a matter of convenience, I will refer to Ms. Scheiber (whose last name is now Hamilton) as "the mother", and to Mr. Phyall as "the father".

[3]         I note, at this point, that Liam has been living in Powell River since August 2001 and that he has just completed grade one in that community.

[4]         In essence, counsel for the mother submits that Madam Justice Dillon erred in her application of the principles set forth in Gordon v. Goertz, [1996] 2 S.C.R. 27, to the facts before her.  In particular, counsel submits that in coming to the conclusion that the best interests of Liam would be served by providing that he remain with the father in Powell River, Madam Justice Dillon erred in:

(1)  placing disproportionate weight on the father's interests;

 

(2)  placing disproportionate weight on the father's relatively short relationship with his common-law wife, as compared with the mother's substantially longer relationship with her present husband, Mr. Hamilton;

 

(3)  placing little importance on the mother's role as the primary caregiver of Liam, and failing to treat her views as to Liam's best interests with the "great respect" referred to in Goertz;

 

(4)  placing disproportionate weight on the mother's alleged failings to maximize contact between the father and Liam.

 

 

[5]         I see little purpose in reviewing the lengthy history of this matter since it is well known to the parties and it is of little precedential significance to others.  Suffice it to say that the mother's application to vary the custody and access order to permit her to move with Liam to Mill Bay was triggered by her present husband's acceptance of employment in Mill Bay in October 2001.  Approximately six months earlier, the mother had brought on a similar application to permit her to move with Liam from the Powell River area to New Zealand where her husband had a job available to him on the family farm.  Madam Justice Allan dismissed that application on the basis that such a variation of the order would not be in Liam's best interests.  It was contemplated at the time of Madam Justice Allan's order that a further application for a variation order might be forthcoming if, and when, the mother's husband obtained employment.

[6]         The parties filed extensive materials in support of their applications before Madam Justice Dillon, including all of the materials which had been previously filed on the application before Madam Justice Allan.  After reviewing these materials, the relevant provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the principles set out in Goertz, Madam Justice Dillon concluded that Liam's best interests would be served by dismissing the mother's application and by providing that the primary residence of Liam be with the father. 

[7]         In coming to the conclusion that Liam should remain with the father in Powell River, Madam Justice Dillon emphasized  that Liam was a happy, well-adjusted child with close ties to both of his parents.  She specifically found that both parents were "excellent, caring, loving parents".  She concluded, however, that the father was the more stable parent at that time, and that he would be the parent more likely to ensure that Liam had maximum access to both parents.  In that regard, there was evidence before Dillon J. which indicated that the mother viewed the joint custody order as being primarily one of form rather than substance, and which indicated that the mother had been taking steps to gradually reduce the father's involvement in Liam's life.  Madam Justice Dillon also noted that Liam had significant connections with the Powell River community and with family and friends there.

[8]         Despite the able submissions of counsel for the mother, I am not persuaded that there is any basis for interfering with the order of Madam Justice Dillon.  The grounds of appeal are framed in terms of the weight which Madam Justice Dillon gave, or failed to give, to various aspects of the evidence before her.  Matters of weight fall primarily within the province of the finder of fact.  Further, orders of this kind are highly discretionary and the scope of appellate review with respect to them is narrow. 

[9]         The standard of review in cases involving the custody of, and access to, children was recently, and forcefully, reiterated by the Supreme Court of Canada in Van de Perre v. Edwards, [2001] 2 S.C.R. 1014.  At para. 13 of that decision, Mr. Justice Bastarache, speaking for the Court, stated that "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."  In the absence of such an error, it is not the function of an appellate court to reconsider and reweigh the evidence with a view to substituting its opinion of the best interests of the child for that of the trial judge.  It is also important to note that these cases are largely fact-driven and that references to other authorities are often of limited assistance, except insofar as they state the basic principles to be applied. 

[10]    In this case, Madam Justice Dillon reviewed and weighed the evidence and gave detailed reasons for concluding that the best interests of Liam would be served by making the order under appeal.  She correctly set forth the relevant principles in Goertz and, in my view, no material error has been established in the application of those principles to the evidence before her.

[11]    In the result, I would dismiss the appeal.

 

 

“The Honourable Madam Justice Prowse”

 

 

I AGREE:

 

“The Honourable Mr. Justice Esson”

 

 

I AGREE:

 

 

“The Honourable Madam Justice Levine”