Leis v. Leis, 2011 MBCA 99

Citation: Leis v. Leis, 2011 MBCA 99 Date: 20111202 Docket: AF 11-30-07615 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin BETWEEN: ) J. G. E. Young andCHERYL EVONNE LEIS ) K. S. Brownell ) for the Appellant (Petitioner) Respondent ) ) T. P.

Beley- and - ) for the Respondent ) ) Appeal heard:DAVID WILLIAM LEIS ) November 28, 2011 ) (Respondent) Appellant ) Judgment delivered: ) December 2, 2011 MONNIN J.A. 1 This is an appeal from a decision of a judge of the Family Division of the Court of Queen’s Bench granting an applicationbrought by the petitioner whereby she obtained custody of the two children of the marriage and was allowed to move with them toSeattle, Washington. 2 The standard of review in custody cases is not disputed.

With respect to this type of order, an appellate court should notintervene in the absence of a material error, a serious misapprehension of the evidence or an error of law. See this court’s decisions inRiddell v. Riddell, 2008 MBCA 145, and Rogers v. Rogers, 2011 MBCA 50, 268 Man.R. (2d) 77. The reasons for such deferentialtreatment are set out by Bastarache J. in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, referring to L’Heureux-Dubé J’s.decision in Hickey v.

Hickey, (SCC), [1999] 2 S.C.R. 518 at paras. 10, 12 (at para. 11): In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that the appellatecourt remind itself of the narrow scope of appellate review. L’Heureux-Dubé J. stated in Hickey v. Hickey, (SCC),[1999] 2 S.C.R. 518, at paras. 10 and 12: [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation ofthe particular facts of the case.

It is a difficult but important determination, which is critical to the lives of the parties and to theirchildren. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts whensuch decisions are reviewed. . . . There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation andrecognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a

material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply becauseit would have made a different decision or balanced the factors differently. [Emphasis added.] 3 The main thrust of the appeal is that the trial judge erred when he refused to follow the recommendation of an expertassessor to the effect that the best interests of the children would be better served by their remaining in Winnipeg. In his reasons, the trialjudge indicated that he would give little weight to the expert’s report.

The respondent argues that, absent a detailed explanation in hisdecision as to the reasons why he did so, he erred in law. 4 In my view, the reasons of the trial judge must be read in the context of the evidence before him, his findings as to theparenting abilities of the respective parents, and his analysis of the various factors which influenced his final determination as to the bestinterests of the children. 5 He was cognizant of the requirements imposed upon him by this court’s decision in Zeaton v.

Zeaton (1999), (MB CA), 142 Man.R. (2d) 36, namely, to give consideration to expert reports and where they were not being followed, to givesome explanation as to why. 6 While it would have been helpful to this court to have a more detailed explanation of the reasons why he discounted theopinion of the expert, when the trial judge’s decision is considered in its entirety, it is clear that one of the reasons he did so turned on hiscredibility assessment of the parenting abilities of the petitioner as compared to the respondent, findings which were contrary to a majorpremise upon which the assessor rendered her opinion.

His conclusion that the petitioner had been and would remain in the betterposition to be the primary caregiver to the children is supported by the evidence. In my view, in the circumstances of this case, thatfinding led inexorably to the conclusion that their best interests lay in moving with the petitioner. Accordingly, I see no reason not togrant the trial judge’s decision the deference it deserves. 7 I would therefore dismiss the appeal with costs. J.A. I agree: C.J.M. I agree: J.A.