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Courts - Canada - Campbell
Docket: CA030371
Between:
Blair Alexander Campbell
Respondent
(Plaintiff)
And
Dawneen Lynn Campbell
Appellant
(Defendant)
Before: The Honourable Madam Justice
Ryan
The Honourable Madam Justice Newbury
The Honourable Madam Justice Levine
Oral Reasons for Judgment
Appellant appearing in person
N. McKay Counsel for the Respondent
Place and Date of Hearing: Vancouver, British Columbia
November 26, 2003
Place and Date of Judgment: Vancouver, British Columbia
December 1, 2003
[1] NEWBURY, J.A.: Ms. Campbell appeals an order of Mr. Justice
Groberman giving custody of the parties' two children, Jared
(born 1995), and Geoffrey (born 1996), to their father, the
respondent. The trial judge's order was made following a four-week
trial in 2002, the focus of which was certain 'sexualized'
behaviour of the children and an allegation made by Ms. Campbell
that they had been sexually abused by Mr. Campbell. This allegation
had been the subject of repeated tests, evaluations, and interventions
by the relevant provincial authorities and medical 'experts'.
[2] At the end of the day, the trial judge found that neither
party was "a saint" but that Ms. Campbell, who was
the children's primary caregiver, had "seriously distorted"
facts in order to denigrate Mr. Campbell. More importantly,
he found that the complaints of sexual abuse to be groundless
and that Ms. Campbell’s attitude towards Mr. Campbell
ran contrary to the children’s best interests. In his
analysis:
[16] I find that she undertook a concerted campaign to remove
Blair from the children's lives, and that the campaign included
a series of false allegations to professionals and the courts
and generally successful attempts to make a restoration of
the parent/child relationship between Blair and the two boys
as difficult as possible. It is my view that her efforts have
not been in the best interests of the children and, further
that it is unlikely, if the children remain in the custody
of Ms. Campbell, that the campaign will be ended.
[17] While I harbour some doubts on the matter, I am not prepared
to find that Dawneen Campbell has acted solely out of spite
or malice in undertaking this campaign. I am prepared to believe
that she genuinely thinks it is in the children's best interests
to be estranged from their father. I am even prepared to accept
that Ms. Campbell genuinely believes at least some of the
falsehoods that she has spread in the course of her campaign.
Even, however, if Ms. Campbell's motives had been entirely
pure, which I am not convinced that they have been, her distorted
views of Mr. Campbell are incompatible with the children's
best interests.
[17] In my opinion, the only way to foster solid relationships
between the boys and both of their parents is to remove them
from the custody of Ms. Campbell and place them in the custody
of Mr. Campbell. I believe that it is in the boy's best interests
to develop strong relations with both parents.
[3] On appeal, Ms. Campbell (who acted in person in this Court)
has advanced several powerful arguments directed at the trial
judge's findings of fact and inferences drawn therefrom. She
submits that the trial judge failed to consider all the relevant
criteria that make up the children's best interests, that
he ignored evidence and gave "little priority" to
their best interests, and that he "disregarded"
the body of evidence regarding the sexual abuse allegations.
With respect to the first two grounds, while the Reasons for
Judgment were brief, it is apparent the trial judge did give
prime importance to the question of the children's best interests.
It was not necessary for him to review all the facts and criteria
in detail in his reasons for judgment. As was stated by this
Court in Van Mol (Guardian ad Litem of) v. Ashmore (1999),
168 D.L.R. (4th) 637 (leave to appeal refused [2000] 1 S.C.R.
vi), 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. There is no reasoned basis for believing the
trial judge did so in this case. He found that both parents
loved the children, and said that but for the allegations
advanced by Ms. Campbell, he likely would have left them in
her care. As I have said, however, he concluded that her "distorted
views" of Mr. Campbell were incompatible with the children's
best interests and that the boys needed to have the opportunity
for developing "strong relations with both parents."
If the children were left in Ms. Campbell’s custody,
they would not have that opportunity.
[4] With respect to the "disclosures" of sexual
abuse, the trial judge said he was convinced “beyond
a reasonable doubt” that there was no substance to them.
As well, he accepted the opinion of Dr. Bingen that Ms. Campbell
had attempted to alienate the children from their father,
and rejected the views of Dr. Boronowski, the general practitioner
to whom the children were taken by Ms. Campbell. Dr. Boronowski
was found to have become an "advocate" for the mother's
views. In summary, the trial judge stated:
[28]… It is difficult to know if the children came up
with any of these “disclosures” on their own.
It is possible that they did say something, and were then
encouraged by Dawneen to repeat their “disclosures”
over and over again. It is also possible that Dawneen initiated
the so-called disclosures by suggesting them to the children.
It is impossible to know what the sequence of events was.
[29] At trial I was treated to Ms. Campbell's alleged documentation
of the disclosures. It was evident to me that Ms. Campbell
simply lied about the manner in which she recorded them, and
even did a poor job of later fabricating documents, such that
her two records of the disclosures did not match in terms
of dates and content.
* * *
[34] I need not catalogue all the attempts by Ms. Campbell
to alienate the children from Mr. Campbell. I have no doubt
that she continued to encourage them to make disclosures of
sexual improprieties involving their father and to denigrate
him. I should say that, of course, these sexual improprieties
are situations that I find never existed. She even went to
extraordinary efforts to try and have his pilot's licence
revoked on the basis of a concocted story about a head injury
allegedly suffered by Mr. Campbell in his childhood.
[35] In respect of all these matters, I do not accept the
explanations where they exist by Ms. Campbell. I find that
she has on many occasions in the past exaggerated and fabricated
evidence, including evidence before a court of law. Her credibility
is severely shaken. In this context, I am also unable to accept
her version of the event in which Mr. Campbell is alleged
to have thrown skates at Dawneen and the children.
[5] Ms. Campbell made a strong argument to the effect that
the removal of a child from his or her primary caregiver is
a very serious and even unusual phenomenon, relying on the
comments of L'Heureux-Dubé J. in Gordon v. Goertz,
[1996] 2 S.C.R. 27, at paras. 126-7. That case concerned the
circumstances in which a custodial parent may be permitted
to move away from the other parent's jurisdiction, making
access to the non-custodial parent difficult or impossible.
L'Heureux-Dubé J. was not speaking for the majority
of the Court in Gordon v. Goertz. The majority commented on
the concept of the best interests of the child as follows:
[20] The best interests of the child test has been characterized
as "indeterminate" and "more useful as legal
aspiration than as legal analysis": per Abella J.A. in
MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.),
at p. 443. Nevertheless, it stands as an eloquent expression
of Parliament's view that the ultimate and only issue when
it comes to custody and access is the welfare of the child
whose future is at stake. The multitude of factors that may
impinge on the child's best interest make a measure of indeterminacy
inevitable. A more precise test would risk sacrificing the
child's best interests to expediency and certainty. Moreover,
Parliament has offered assistance by providing two specific
directions -- one relating to the conduct of the parents,
the other to the ideal of maximizing beneficial contact between
the child and both parents.
[emphasis added]
This second factor, maximizing the child's contact with both
parents, is of course what the trial judge found to be determinative
in this case.
[6] It was also argued that the trial judge had erred in giving
weight to an expert's report where the expert was, according
to Ms. Campbell, not "impartial", his hiring "suspicious"
and his methods not favoured by Ms. Campbell. But the weight
to be given to the report was a matter for the trial judge.
It was open for counsel for Ms. Campbell to advance, and it
appears she did advance at trial, the same arguments Ms. Campbell
put forward in this Court regarding the expert's report, methodology
and reputation. At the end of the day, the trial judge gave
what weight he thought appropriate to the opinion. It was
certainly not error to rule that the witness was properly
qualified as such or that his opinion was admissible. Thus
no error of law or clear or palpable error of fact was shown
in this regard.
[7] As counsel for Mr. Campbell contended, the Supreme Court
of Canada has in recent years made it clear that a trial judge's
findings of fact must be generally deferred to on appeal even
where the custody of a child is in question: see Van de Perre
v. Edwards, [2001] 2 S.C.R. 1014. In that case, this court
had suggested that the best interests of the child "must
prevail over those of the parties and of society in finality
and that appellate courts must do more than rubber stamp trial
judgments unless serious errors appear on their face."
On appeal, the Supreme Court of Canada ruled that this was
erroneous. Bastarache J. for the Supreme Court said this:
[13] ... the Court of Appeal was incorrect to imply that Hickey,
[[1999] 2 S.C.R. 518], and the narrow scope of appellate review
it advocates are not applicable to custodial determinations
where the best interests of the child come into play. Its
reasoning cannot be accepted. First, finality is not merely
a social interest; rather, it is particularly important for
the parties and children involved in custodial disputes. A
child should not be unsure of his or her home for four years,
as in this case. Finality is a significant consideration in
child custody cases, maybe more so than in support cases,
and reinforces deference to the trial judge's decision. 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.
[14] It is clear from this case that it is necessary for this
Court to state explicitly that the scope of appellate review
does not change because of the type of case on appeal. The
Court of Appeal discussed, and the respondents relied heavily
on, the decision of McLachlin J. (as she then was) in Gordon
v. Goertz, [1996] 2 S.C.R. 27. In that case, the Court found
that the trial judge had only mentioned one factor to be considered
in determining the best interests of the child. As noted by
McLachlin J., there was no way of knowing if the trial judge
had considered the other applicable factors. Further, the
Court noted that the trial judge had stated that he was relying
heavily upon the findings of another judge. As a result, McLachlin
J. stated, at para. 52: ". . . one may equally infer
that the necessary fresh inquiry was not fully undertaken.
. . . [I]t seems clear that the trial judge failed to give
sufficient weight to all relevant considerations . . . and
it is therefore appropriate for this Court to review the decision
and, should it find the conclusion unsupported on the evidence,
vary the order accordingly." Rather than indicating that
appellate review differs when a court must consider the best
interests of the child, Gordon is consistent with the narrow
scope of appellate review discussed later in Hickey, supra.
The case does not suggest that appellate review is appropriate
whenever a trial judge has failed to mention a relevant factor
or to discuss a relevant factor in depth.
[15] As indicated in both Gordon and Hickey, 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. This being said, I repeat
that omissions in the reasons will not necessarily mean that
the appellate court has jurisdiction to review the evidence
heard at trial. As stated in Van Mol (Guardian ad Litem of)
v. Ashmore (1999), 168 D.L.R. (4th) 637 (B.C.C.A.), leave
to appeal refused [2000] 1 S.C.R. vi, 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.
[emphasis added.]
[8] In the case at bar, the central finding of the trial judge
was that Ms. Campbell had undertaken a concerted campaign
to remove their father from the children's lives and that
if the mother had custody, it was likely she would disregard
the children's interest in having a meaningful relationship
with their father. Having read much of the evidence in this
case, I cannot say that this conclusion was not supported
by the evidence or that the trial judge must have ignored
or misconceived evidence in reaching his conclusion.
[9] Last, I would not admit the fresh evidence proffered by
Ms. Campbell with respect to the present condition of the
children. (Mr. Campbell also proferred an affidavit in response,
and both affidavits would have to come in if one came in,
in my view.) The criteria for the admission of fresh evidence
are well known: see Palmer v. R. [1980] 1 SCR 759. Since this
evidence would not have had a decisive effect on the appeal,
those criteria were not met here.
[10] In the result, I would dismiss the appeal.
[11] RYAN, J.A.: I agree.
[12] LEVINE, J.A.: I agree.
[13] RYAN, J.A.: The appeal is dismissed.
”The Honourable Madam Justice Newbury”
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