2011 NBCA 109, 2011 NBCA 109

COURT OF APPEAL OF NEW BRUNSWICK 154-10-CA C.A. (Respondent) APPELLANT C.A. (Intimé

e) APPELANTE - and - - et - A.A. (Petitioner) RESPONDENT A.A. (Requérant) INTIMÉ C.A. v. A.A., 2011 NBCA 109 C.A. c.

A.A., 2011 NBCA 109 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : L’honorable juge Larlee L’honorable juge Deschênes L’honorable juge Richard Appeal from a decision of the Court of Queen’s Bench: October 25, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 25 octobre 2010 History of case: Decision under appeal: 2010 NBQB 353 Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 2010 NBBR 353 Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 19, 2011 Appel entendu : Le 19 mai 2011 Judgment rendered: December 15, 2011 Jugement rendu : Le 15 décembre 2011

Counsel at hearing: For the appellant: Monique Veillette For the respondent: Linda Boudreau Avocats à l’audience : Pour l’appelante : Monique Veillette Pour l’intimé : Linda Boudreau THE COURT The appeal is dismissed with costs of $2,500.00. LA COUR L’appel est rejeté avec dépens de 2 500,00 $. English version of the decision delivered by THE COURT [1] On this appeal of a decision of a judge of the Court ofQueen’s Bench delivered on October 25, 2010, regarding a petition for divorce, childcustody and child support (2010 NBQB 353, 365 N.B.R. (2d) 357), the standard ofappellate review, as quoted from MacDonald v.

MacDonald, 2011 NBCA 25, [2011]N.B.J. No. 81 (QL), is as follows: The standard of review that applies to family matters generally is that the judge’s decision must be given considerable deference. Anappellate court is empowered to set aside or vary a decision or order where it is the product of an error of law, an error in principle, asignificant misapprehension of the evidence or if it is clearly wrong (see Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518,[1999] S.C.J. No. 9 (QL) para. 11; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Savoie v. Levesque, 2009 NBCA 47,[2009] N.B.J. No. 282 (QL); Ms.

P.H. v. Mr. P.H., 2008 NBCA 17, [2008] N.B.J. No. 52 (QL); Milton v. Milton, 2008 NBCA 87, 338N.B.R. (2d) 300, para. 14.; J.E.J. v. S.L.M., 2007 NBCA 33, [2007] N.B.J. No. 249 (QL), para. 35; S.H. v. V.B., 2007 NBCA 69, 321N.B.R. (2d) 314, para. 2). [para. 7] [2] Although the appellant raises seven grounds of appeal, acareful examination of the arguments made in support of these grounds shows thatthe appellant is in effect asking us to retry the case on appeal.

Essentially, theappellant wants us to reassess the evidence, reach conclusions favourable to her andsubstitute these conclusions for those of the trial judge. It has consistently been heldthat such is not the role of an appellate court. [3] Although the appellant maintains that the grounds of appealaddress errors of law and errors of mixed law and fact, the arguments raised in

support of these grounds show that the appellant is in fact challenging the findings of fact made by the trial judge. None of the grounds of appeal allege a palpable and overriding error and no reference to this standard of review can be found in the appellant’s written submission. Yet, it is now trite law that, absent a finding of palpable or overriding error, an appellate court must not interfere with a trial judge’s findings of fact or factual inferences. [4] In the present case, the trial judge heard oral testimony and received documentary evidence on the issues that are raised in this appeal.

He gauged the credibility of the witnesses, made findings of fact and drew inferences from the facts, and, by applying the rules of law to these facts and inferences, he reached conclusions that the appellant is now asking us to set aside. The judge’s reasons for decision clearly show that he understood the principles of law to be applied in this case. In our opinion, based upon review of the record, the judge’s findings of fact are supported by the evidence adduced at trial. We are unable to find any overriding error of law, error of principle or overriding error in the

interpretation of the evidence in the decision on appeal. We underline the qualifier “overriding” because the appellant showed that the judge might have erred in law by relying on an affidavit that was filed in support of an earlier motion but not at trial, and that he might have made a few errors in his assessment of the evidence.

Nevertheless, the appellant has not satisfied us that these errors are overriding in the sense that they could have had some impact on the judge’s ultimate decision. [5] Accordingly, applying the appropriate standard of review, we dismiss the appeal with costs of $2,500.00 $. ________________________________ M.E.L. Larlee, j.c.a. ________________________________ Alexandre Deschênes, j.c.a. ________________________________ J.C. Marc Richard, j.c.a.