N.L.W. and K.W. v. T.M.W. and R.W.

2006 BCSC 905 N.L.W. and K.W. v. T.M.W. and R.W. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: N.L.W. and K.W. v. T.M.W. and R.W., 2006 BCSC 905 Date: 20060614 Docket: 0515960 Registry: Williams Lake Between: N.L.W. and K.W. Appellants And T.M.W. and R.W. Respondents Before: The Honourable Mr. Justice Hood Reasons for Judgment Counsel for the Appellants: A.P. Czepil The Respondents, T.M.W. and R.W. Appearing On Their Own Behalf Date and Place of Hearing: October 31 and November 1, 2005 Williams Lake, B.C. [1] This is an appeal from the decision of a Learned Provincial Court Judge, (the Trial Judge), pronounced June 27, 2005, whereby he awarded custody of D.C.A.W., then ten years of age, to the Respondents, R.M.W. and R.W., the natural parents of the Child. In doing so the Trial Judge set aside the previous order of another judge of the Provincial Court, (the First Trial Judge) pronounced September 12, 2003, whereby custody of the Child, who was then eight years of age, was granted to the Appellants, N.L.W. and K.W., the Grandparents of the Child, who had in fact raised the Child. [2] At the conclusion of the hearing I advised the parties that in my opinion this matter was most urgent, and that in the best interest of all concerned, particularly the Child, I would give my decision as soon as possible, while I was in Williams Lake, as to whether the Child should be returned to the custody of the Appellant Grandparents, as initially ordered by the First Trial Judge; that I would deliver my Reasons for Judgment at a later date, when I was in a position to do so, but only if the parties required them. On November 3, 2005, at Williams Lake I gave my decision that the appeal should be allowed and that the custody of the Child should be restored to the Appellant Grandparents forthwith. [3] In March 2006 I was advised by the Williams Lake Registry that the Respondents wished to appeal my decision, and that they therefore required my Reasons. While I had anticipated that if Reasons were required the request would come shortly after the conclusion of the trial, obviously this was not to be. However, since the Respondents were self-represented, I have prepared these Reasons as requested, and within the time frame of my availability to do so. They should be read as if they were delivered on the completion of the hearing. [4] On the opening of the appeal, and on my enquiry, the Respondent Mother, advised me that their counsel, was "willing to go on the record", but was "on circuit", and suggested that they should apply for an adjournment; that the Respondents did not want the matter adjourned, and wanted to proceed even though they would have to represent themselves and had no experience as counsel. [5] Mr. Czepil, for the Appellants, advised me that he had an earlier date for the appeal, in the month of August, which was adjourned on the application of the Respondents to a date when the named counsel would return from holidays and a new date could be fixed. A new date was fixed before Mr. Justice Meiklem, to that counsel's knowledge, whose position at the time was that the Respondents needed until mid-October to retain him. Mr. Czepil advised me further that the counsel told him last week that the Respondents had not retained him and that he would not be appearing. THE HISTORY OF THESE MATTERS [6] On September 12, 2003, the First Trial Judge, following a two day hearing, gave Judgment in which he awarded custody of the Child to the Appellant Grandparents. In awarding custody to the Grandparents he found that the Child, then eight years of age, had lived with the Grandparents for almost his entire life, that the environment provided by the Grandparents was positive and nurturing, that the Child was happy, well adjusted, and that more than anything, this was attributed to his Grandparents' care, particularly that of his Grandmother. [7] The First Trial Judge also noted that the involvement of the Respondent Parents with the Child was less than encouraging, especially in the earlier years. He also found, while acknowledging that the Respondents love their Child, and were now perhaps better equipped to fill the role of parents than they were in previous years, there was not sufficient evidence before him to justify a change in the Child's care. It is a decision with which I agree, since in my opinion the First Trial Judge could not have come to any other decision in fact and in law. [8] The First Trial Judge had before him an application for custody brought by the Respondents, and an application for custody brought by the Appellants. Both applications were heard at the same time. The primary issue before him then concerned the custody of the Child. [9] I will extract some passages from the First Trial Judge's Reasons which demonstrate the clarity of his reasoning, and his conviction that the Child's best interest was that he continue to reside with, and in the custody of, his Grandparents. At p.2, commencing in para. 4: (4) ... Indeed, the evidence that I have heard so far indicates that he has been flourishing, and that there are, thankfully, no signs of the upset or the troubles which can afflict a young person faced with parental and grandparental bickering. It would be ironic indeed, however, if the bickering between the warring parties in this case brings about the one thing which none of them want, and that is damage to [the Child's] well being. (5) However, I very much fear that the corrosive relationships which I have heard about in this case will have precisely that effect upon [the Child], whatever I say. My main consideration in determining [the Child's] custodial status is to protect and to nurture his well-being in every sense, and I have been mindful of the overriding concern throughout. (My emphasis added). [10] In para. 7 of those Reasons, at p.3 he stated: (7) The evidence that I have heard indicates that [the Child] has been with his grandparents in Mackenzie for almost his entire life. He has only lived in two homes in that period of time. In my view stability and continuity of care are features to be highly prized in a child's upbringing. So long as a stable environment is a satisfactory one, in my view it requires evidence that a move would constitute a significant betterment in order to upset the existing balance, and in my view that evidence simply has not been provided. ... (8) In this case the environment provided by the grandparents plainly is positive and nurturing. [The Child] has attended the same school since he was three years of age and his school records, which have been filed, and which I have reviewed, indicate that he is a consistently good student. To my mind the school performance is indicative of a happy, well-adjusted boy. Various school teachers and administrators who I have heard in this case have confirmed exactly that, and it is more than anything a tribute to his grandparents' care. (9) The prime caregiver throughout [the Child's] life has quite obviously been his grandmother, [N.L.W.]. I listened very carefully to her testimony, bearing in mind that I already knew of the swiftly flowing undercurrents in this case, and I must say that I was greatly impressed with her directness and her apparent sensitivity to some very difficult issues. (10) [N.L.W.] is a conscientious homemaker who has devoted her last few years to [the Child's] care. The evidence that I heard discloses that she takes him to school every day, she meets him at the end of each day and she stays in regular contact with the school staff. She also described in her testimony how she encourages [the Child] with organized physical activity, such as karate and swimming lessons, and more relaxed leisure activities which he undertakes with both grandparents. She has consistently ensured that [the Child] attends to his personal needs, such as hygiene and spiritual growth, and she has made a genuine effort to ensure that he has a well structured home environment. (My emphasis added). [11] And at p. 4: (12) In my view the care and attention which has been lavished upon [the Child] is above reproach, a fact which might account for the relative absence of cross-examination when both [N.L.W. and K.W.] testified. (13) I listened carefully while [T.M.W. and R.W.] testified, and I heard very little suggestion that the grandparents were anything other than fit caregivers. That does not seem to be the issue in this case for the most part. (My emphasis added). [12] At p.6 the First Trial Judge stated: (16) After hearing from both grandparents, I then had the benefit of confirming testimony from a number of stable and respected members of the local community. All of them spoke in the most positive terms of [the Child's] relations with his grandparents and his positive attributes. Those testimonials must be seen as positive indications of where [the Child's] best interests lie, and I so find. (My emphasis added). [13] At p.7, after noting that the Grandmother had been the Child's primary caregiver "from a very, very early stage" and that the Mother appeared to have made "the conscious decision that caregiving was her mother's responsibility", the First Trial Judge stated: (19) What has happened more recently is that both [T.M.W. and R.W.] have matured and they now want [the Child] to take up what they see as the proper place in their lives. I have no doubt whatsoever that they are much better equipped to fill that role as parents now than they were even a few years ago, yet I sense that their desire to have [the Child] back is at least partly resulting from their own agenda, and particularly [T.M.W.'s] agenda, than it is out of a single-minded pursuit of [the child's] happiness. (My emphasis added). [14] Finally, after discussing the hostility between the parties, and noting that in his view the bad state of the relationship between T.M.W. and her mother N.L.W. affected the daughter much more than the mother, His Honour states at p.9: (24) All of this leads me finally to the question of the undoubted hostility which exists amongst the parties. My conclusion, as I may have inferred earlier, is that the hostility appears to rest much more heavily on [T.M.W.'s] shoulders than it does upon her mother's. I am concerned that if custody were varied such that [T.M.W.] obtained custody at this point, the relations between the parties would be much uglier than if the reverse occurred. For that reason as well I am bolstered in my conclusion that [the Child's] best interest is he remain in his continued residence with his grandparents. (25) This is not to say by any means that [R.W. and T.M.W.] would be bad parents. I don't think they would be bad parents, but the long and short of it is that they have not really given me any evidence to suggest that this flourishing child would benefit in any way from a change of his custodial environment. (My emphasis added). The First Trial Judge's Reasons for Judgment dated September 12, 2003 are in evidence. [15] In the spring of 2004, the Appellants applied for child support from the Respondent Mother. In response to the application, the Respondents applied for custody. They had never applied for custody before, although they had applied for access. Their application came on for a case conference before the Trial Judge on June 11, 2004, at which time the Grandmother attended without counsel. It is common grounds that during the case conference, the Conference Judge, who later became the Trial Judge, (I will refer to His Honour as the "Conference Judge" while dealing with the events which occurred at the conference) expressed his firm opinion that the Respondents should have custody of the Child, and advised them how they should go about obtaining custody, including waiting for a material change in circumstances, pressed the Appellants as to how long the child had resided with them, and chastised them for their "attitude" that they should continue to have custody of the Child, until he was of age, as opposed to his biological Parents. This is clear from the transcript, although it contains many questions and answers which were broken up because of more than one person talking at the same time. In any event, I would reference pp.2, 3, 4, 15, 20, 21, 22 and 23 of the Conference evidence transcript. [16] Subsequently, when Mr. Czepil was retained somewhat late in the day by the Appellants and told what had happened at the June 11, 2004 case conference, no record could be found of it and it was thought that the Grandmother may have misunderstood what had transpired during the Conference. Following an adjournment of the trial, after two days before the Trial Judge, on January 14, 2005, Mr. Czepil was again unsuccessful in attempting to obtain a copy of the transcript of the case conference proceedings. However, he persisted and eventually succeeded in obtaining a copy of the transcript, which is in evidence. [17] I have perused the transcript and make only two observations on its contents. First, it appears that at the conference the Conference Judge did not have the First Trial Judge's Reasons for Judgment before him. Second, the Conference Judge was told facts by the Mother which were in direct conflict with the facts found by the First Trial Judge. I refer, by way of example, to the Mother's assertion before the Conference Judge that the Child lived with her and Mr. W. for the first two and a half or three years after his birth, and that they then asked the Grandparents to "help us out". In this regard, the First Trial Judge accepted the Appellants' evidence to the contrary, and found that the Child lived with the Grandparents "for almost his entire life" and that during that time the Grandmother was his primary caregiver. He also found that early on the father had offered to formalize "the caregiving arrangements" with the Grandmother, who did not think that it was necessary at the time. In his Reasons, the First Trial Judge makes it clear that he preferred the evidence of the Grandparents over that of the Respondents. [18] What happened during the case conference is described in Mr. Czepil's Outline of Argument at p.2 as follows: In that case conference, the [Trial Judge] expressed the opinion to the Appellants that arrangements should be made for the child to move back in with his natural parents. He told the Respondents that it was too soon for them to apply to change custody and that they would not likely be successful. He advised them that they would need to establish a change in circumstances and they might have to live with the [First Trial Judge's] Order for another year or so. He advised them on steps which they could take to put themselves in a position to apply to change custody at a latter date. (My emphasis added). I observe that the words "that arrangements should be made for the Child to move back in with his natural parents" are less than descriptive of the actual situation, since the Child basically had lived with his Grandparents since shortly after his birth. [19] I pause to observe, at this point, that I am told that a case conference in the Provincial Court is the same as a judicial case conference in this Court. I note that in this Court, at the Conference the judge informs the parties that they should be open and frank while discussing the issues, and that nothing that they say can be used against them in subsequent proceedings. They are also told by the Conference Judge that he or she will not be the Trial Judge, and for the same reason, that is to say that nothing that the Conference Judge is told or that he concludes or opines can be used against the parties in the subsequent proceedings. In my opinion all of this advice is fundamental to the success of the Conference, and the Conference Judge simply cannot be the Trial Judge period. In the case at Bar, it would appear that the Conference Judge may not have given the parties these assurances; that this is probably why Mr. Czepil decided to rely on the principle of reasonable apprehension of bias. In any event, it appears that I need not deal with the point further. [20] I will express my view at this point that His Honour's comments and opinions expressed during the Case Conference probably were not out of line, and were basically in keeping with the purpose of the Case Conference, provided he did not become the Trial Judge. However, once he became the Trial Judge, his comments and opinions must be viewed in an entirely different light, that is, whether they demonstrate a real possibility of a reasonable apprehension of bias. I will also say at this point, that I am satisfied that a reasonable apprehension of bias has been clearly demonstrated in accordance with the tests set out in the authorities; and this is so whether or not the Case Conference was the one which "set up the trial of the custody issue". What was said was said in the context of who should have custody of the Child. [21] It should be noted that after the Case Conference of June 11, 2004, because of conflict between the Appellants and the Respondents and other extended family members in the small town of Mackenzie where all of the parties were then residing, and of the change in location of K.W.'s employer as a result of which he was no longer required to live in Mackenzie, the Appellants decided to move to Williams Lake. This resulted in access difficulties because the Grandparents and the Child lived in Williams Lake while the parents lived in Mackenzie. The Respondents immediately responded with an application to change custody based on this new circumstance, that is, asserting that the move constituted a material change in circumstances. I observe also that on the evidence the move was clearly justified, and no contrary position was taken. [22] In any event, on learning what had transpired before the Trial Judge during the June 11, 2004 Case Conference, when the trial resumed, counsel for the Appellants brought on an application before the Trial Judge to recuse himself on the grounds that his comments at the Case Conference gave rise to a reasonable apprehension of bias. The Trial Judge declined to recuse himself and the trial continued. His Reasons for Judgment for doing so dated March 18, 2005, are in evidence. [23] What happened at trial is briefly set out in Mr. Czepil's Outline of Argument commencing at p.2 as follows: After 5 days of hearing, the [Trial Judge] gave his decision in which he overturned the [First Trial Judge's] Order and awarded custody of the child to his natural parents. In doing so, the [Trial Judge] found, as had the [First Trial Judge], that the child had been in the Appellants care for the majority of his life and had been essentially raised by them. The Appellants had established themselves as excellent caregivers and had done an exemplary job in raising the child to become a happy, healthy, polite and intelligent little boy. He also found that the move from Mackenzie to Williams Lake had benefited the child, who was ten at the time of trial, by removing him from the family conflict present in Mackenzie and that he had adjusted well to his new community. In overturning the Order of the [First Trial Judge] and awarding custody to the Respondents, the [Trial Judge] concluded at paragraph 94 that, as the child's parents, their claims for custody must not be set aside, unless it was in the child's best interest to do so, they are not strangers in his life, they are capable of parenting him, there was a greater likelihood that they would respect the place of the Appellants in the child's life than would be the reverse if custody remained with the Appellants, and that the Respondents were more likely to honour the letter and spirit of any Court Order. (My emphasis added). THE APPLICABLE STANDARD OF APPELLATE REVIEW [24] I have considered the cases to which I was referred, Struck v Struck, [2003] B.C.J. No. 2613 (Q.L.) (C.A.), 2003 BCCA 623; C.R.H. v. B.A.H. [2005], B.C.J. No. 1121 (K.D.) (C.A.), 2005 BCCA 277 and Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (Q,L,), 2002 SCC 33, and the decision of Sopinka J., speaking for the majority at p.692 in Willick v. Willick, [1994] 3 S.C.R. (S.C.C.) 670, on the general standard of review, and other cases pertaining to a reasonable apprehension of bias. I do not propose to deal further with the latter issue and cases pertaining to it. I have already stated my opinion, that the Appellants have clearly demonstrated a reasonable apprehension of bias in accordance with the test laid down in the authorities referred to. [25] Struck was a custody case in which a Provincial Court Judge granted custody of the parties' 17 month old daughter to the father. On appeal to this Court, the Trial Judge's decision was overturned. On further appeal to the Court of Appeal, the decision of the Appeal Judge was set aside, the effect being to restore the order of the Trial Judge. It was found that the Appeal Judge erred in law by failing to apply the applicable standard of review to the appeal from the decision of the Trial Judge; that he had embarked on a reassessment or re-weighing of the evidence which the Appellant Judge was not entitled to do. The issue before the Trial Judge was obviously who should have custody. It was not an application to vary a previous order which decided that issue, as in the case at Bar. [26] In Struck, Rowles J.A., speaking for the Court, notes at para. 27 that the determination of the custody proceedings that took place in the Provincial Court had to be guided by s.24 of the Family Relations Act, R.S.B.C. 1996, c.128. At para. 39 she had the following to say with regard to the scope of appellate review, referring to Housen, and other decisions of the Supreme Court of Canada, including Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, [1994] 1 S.C.R. 114; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60; and Hickey v. Hickey, [1999] 2 S.C.R. 518. [27] Her Ladyship commenced by quoting from Toneguzzo-Norvell, a decision of Madam Justice McLachlin, as she then was, at p.121: It is by now well established that the Court of Appeal must not interfere with the trial judge's conclusions on matters of fact, unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the Judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: (Authorities not cited). A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. (My emphasis added). [28] She went on to cite Van de Perre and Hickey for the propositions: ... that decisions of trial judges must be given considerable deference by appellate courts and should only be interfered with when there is a material error, a serious misapprehension of the evidence, or an error in law. Hickey was a case involving support issues but the scope of appellate review does not change because of the type of case on appeal. In the context of a case involving custody, the standard of review was forcefully reiterated in Van de Perre v. Edwards, supra. In that case, Mr. Justice Bastarache, speaking for the court, made clear that the principle applied in custody cases of "best interests of the child" does not invite application of a different standard of appellate review. An appellate court cannot review custody decisions in the name of the best interests of the child where there has been no material error. In the absence of such an error, it is not open to the 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. (My emphasis added). [29] In the end, Madam Justice Rowles found that the Appeal Judge erred in law by failing to apply the applicable standard of review to the appeal from the decision of the Trial Judge. She states in para. 56: With deference, it was not open to the appeal judge to substitute his view for that of the trial judge as to the best "parenting" arrangement that was to be made for Sydney. If an appellant wishes to successfully attack findings of fact made by a trial judge, it is incumbent on the appellant to identify the error: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at 388-389; Wilson v. Guichon (1993), 76 B.C.L.R. (2d) 191 at 199 (C.A.). If there is evidence which would support the trial judge's findings, an appellate court will not interfere unless a material misapprehension of the evidence is demonstrated. In this case, there was evidence to support the trial judge's conclusion that Mr. Struck was able to provide a stable home for Sydney and that access to her siblings and extended family would be fostered if Sydney was placed in Mr. Struck's care. [30] In C.R.H. v. B.A.H., the father appealed a decision which varied the parties' separation agreement to provide that the primary residence of the parties' children be with the mother, notwithstanding her relocation in Alberta. The Trial Judge found that the father did not establish sufficient reasons to vary the primary residence of the children. He ruled that the move was not disruptive, was in the best interests of the children, and that the father's access would not be significantly reduced. The father's appeal was unsuccessful. [31] Of interest in this case is the fact that in C.R.H. Madam Justice Rowles, speaking for the Court of Appeal, emphasized that in Gordon v. Goertz, [1996] 2 S.C.R. 27, there was a prior order granting the mother permanent custody; that it was in the context of that prior order that the Court held that a parent applying for a change in custody must show a material change in the circumstances. She agreed with the decision of Hinds J., as he then was, in Kamimura v. Squibb (1988), 13 R.F.L. (3d) 31, that the situation was different where there is an agreement between the parents concerning the custody of the children rather than a prior order. Her Ladyship stated: In my respectful view, Hinds J. put the issue correctly. Where no prior order for permanent custody has been made, a court's order for custody must be based on a full and balanced consideration of all factors touching on the best interests of the child. An agreement concerning custody between contending parties is an important factor to take into consideration, but it is only one factor. (My emphasis added). [32] I observe that in the case at Bar the Trial Judge seemingly did enter into a full "consideration of all factors touching on the best interests of the Child"; although in accordance with Gordon his enquiry should have been a restricted one, since it was to be based on the findings of the Judge who made the previous order and the evidence of the new circumstances. He was required to consider the findings of fact made by the First Judge, as well as the evidence of changed circumstances, in order to decide what custody arrangements then accorded with the best interests of the Child. [33] I do not intend to deal with Housen in any detail. There the judgment of the majority was given by Iacobucci and Major JJ., who opened their Reasons by stating: A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge's reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge's decision if there was some evidence upon which he or she could have relied to reach that conclusion. The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities. (My emphasis added). The Court then defined "palpable error" as one which is "clear to the mind or plain to see" and "so obvious that it can easily be seen or known". [34] The Court then went on to discuss the standards of review relevant to questions of law, questions of fact, inferences of fact and questions of mixed fact and law, and the underlying reasons for the high level of appellate deference to a trial judge's findings of fact. [35] The standard of review on a question of law is that of correctness. The standard of review for findings of fact is most relevant in the case, since these cases are largely fact driven, and for that reason a large measure of deference is afforded to the decision of the trial judge in determining the best interests of the child. Such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error". The Court of Appeal must treat a trial judge's findings of fact with great deference. [36] I do not propose to deal with the various policy reasons for employing a high level of appellant deference to findings of fact. However, it is worthy of note that they include the "expertise of the trial judge and his or her advantageous position", which appears to be the most important one. This is explained at para. 18 as follows: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected. I observe that it is not clear to me why a lower standard of review should not be considered in these cases where the application is to vary a previous order and the decision of the trial judge or chamber judge is based on the decision and findings of fact of the chamber judge who made the previous order and the impact of the change in circumstances on it. It would seem that in such a case, particularly where relocation is the material change in circumstances, the chamber judge would not have the usual advantages of a trial judge over the appeal judge, who, it seems, could do the task of the chamber judge as well as the chamber judge. While the scope of appellant review does not change because of the type of case on appeal, should it not change because of the nature of the proceeding appealed from? However, the issue was neither raised or discussed, and it is for a higher Court to decide. [37] Hopefully, in order to avoid the conclusion that in commenting on the evidence and the Learned Trial Judge's Reasons and decision, I am simply stating my different views or reconsidering and reweighing the evidence and so on, I hasten to say that my comments and opinions should be considered in the context of what I consider to be reversible errors in law and fact. To that end, at this point, I will set out my views on this appeal in general terms. I have concluded that in addition to error in failing to recuse himself, the Learned Trial Judge made manifest errors with respect to findings of fact, legal principles applicable and the application of those principles. [38] His Honour's errors include allowing evidence and submissions pertaining to matters of fact decided directly or inferentially by the First Trial Judge, in effect retrying those issues; in failing to assume the correctness of the First Trial Judge's decision and findings of fact when made; ignoring the First Trial Judge's findings that for basically his entire life the Child was cared for and nurtured by his Grandparents, was a happy and well adjusted child which was attributed to his Grandparents care and nurturing, particularly the Grandmother; in failing to consider and weigh the serious impact the change in custody would have on the Child's physical and mental health on a daily basis; in failing to give paramount consideration to the best interests of the Child when considering his health and emotional well being on custody being changed; in failing to apply the Gordon test or standard, in particular in failing to weigh the importance of the Child remaining with the Grandparents, whose custody he had become accustomed to over a period in excess of ten years, in the new location, against the continuance of full contact with the Child's biological Parents and their extended family, in order to determine what was in the best interests of the Child in all of the circumstances, old as well as new. [39] His Honour also erred in approaching his task as if it was a parenting rights issue as opposed to the best interests of the Child; in elevating the biological Parents' parenting rights to the status of a rule of law or strong presumption of critical importance; in diminishing the exemplary role of the Grandparents in the Child's day-to-day living, and the stability and security provided by them, for over a ten year period. [40] Before leaving the standard of review, and what I consider to be the material errors in fact and in law made by the Trial Judge, I observe that to me the standards of review are easier to state than to define or apply. Like the factors to be considered with respect to them, they are somewhat overlapping or entwined such that views or opinions expressed with regard to any one of them may apply, at least in part, to one or more of the others as well. THE TRIAL JUDGE'S DECISION [41] The Trial Judge's Reasons for Judgment dated June 27, 2005, are in evidence. I do not intend to refer to them in detail. However, I will briefly refer to them, particularly paras. 79 through 84 containing his s.24 analysis, and paras. 85-94 containing His Honour's views on factors which he believed favoured, or did not favour, the parties as custodians, ending with His Honour's statement of his Reasons why he was of the opinion that the Child's best interests was for custody to be awarded to the Respondents, the biological Parents. [42] In paras. 66 and 67 His Honour deals with the law pertaining to the variation of a final order for custody as summarized by Chief Justice McLachlin, speaking for the majority, in Gordon. In para. 68 His Honour sets out the general positions of the parties with regard to the custodial claims by the Appellant Grandparents. [43] In paras. 68 through 71 he deals with some of the law pertaining to custodial claims by grandparents in particular situations; for example, when "all else is equal" and when a parent or parents have given custody to the grandparents, but only on an interim basis. His Honour then states in para. 72: From those authorities, the law therefore can be summarized as follows: (a) All else being equal, in a contest for custody of a child between the child's parents and grandparents, custody should be awarded to the parents; (b) Where a parent agrees to give custody of a child to a grandparent or other relative, intending that the arrangement not be a permanent one, the parent may claim custody while having to prove that the child's best interests lay with him or her. The parent is entitled to raise the child unless there is a clear reason why he or she cannot do so, unless he or she clearly agrees otherwise. [44] I pause at this point to note that these statements of the law need not be challenged in so far as they go. However, such law has no application in the case at Bar because it is without question that all else was not equal and, as well, the arrangements made between the Respondent Mother, T.M.W. and the Appellant Grandmother, N.L.W. with regard to the custody of the Child in the end, both expressly by the Respondent Mother, T.M.W., including her letters or cards to her mother, and by the conduct of the Respondents, was that the Child was to remain with the Grandparents. And in fact he has lived with his Grandparents for almost the whole of his life, in excess of ten years. [45] After again referring to authorities for the proposition that parental claims must not be lightly set aside, and with regard to the proposition that status quo arrangements become increasingly more significant in determining what is in the best interests of a child the longer the arrangements have been in place, His Honour then purported to apply the law as he stated it to the facts, commencing his s.24 of the Family Relations Act analysis at para. 79. [46] I will return to this area in a moment when dealing with Mr. Czepil's written submissions. At this point I observe that the analysis was brief and somewhat neutral. His Honour noted that the Child was healthy and well adjusted; that the Child's views had not been canvassed at trial, and left it at that. He noted that the Child "displays love and affection for all the parties", and that he had extended family and friends in both Williams Lake and Mackenzie. He then said: This might be a neutral factor in this litigation but for the fact that the relatives living in Mackenzie seem intent on fuelling the hostility against [the Appellant Grandparents]. This is a factor which contributes to the stress in the Child's life, if not directly, then certainly indirectly. [47] He then noted that it was clear on the evidence that the Child had performed well under the Williams Lake educational system, "despite being at the centre of this tempestuous litigation". Finally, he observed that he did not hear any evidence seriously calling into question the capacity of either side to parent the Child; and in response to Mr. Czepil's observation that the Respondents had less experience parenting the Child, he stated that "at the conclusion of the evidence, I am convinced they are adequately able to care for the Child and meet his needs". [48] My only comment on His Honour's s.24 analysis is that it was conducted without regard to the context or actual facts of the case as found by the First Trial Judge, including the fact that the Child had experienced exemplary care and nurturing from the Appellant Grandparents, and had lived in a stable and balanced environment, effectively for his entire life. His Honour did not deal with the obvious and serious affect that a dislocation of this stable and proven environment would have on the Child if custody was given to the biological Parents, an unknown custodial entity about which the First Trial Judge obviously had some doubts. [49] Clearly, while relocation might be disruptive for the Respondents initially, although it could be dealt with substantially by specific access provisions, the disruption and dislocation caused by the change of custody would have been tremendous and far reaching, impacting on the Child's health and emotional well being. In my view, the obvious detrimental effect of the change in custody should have been a paramount consideration for His Honour when balancing the benefits derived from continuing the excellent custody of the Grandparents against the desirability of maintaining generous contact between the Child and his biological Parents in determining what was in the best interests of the Child; if in fact he applied the test, which does not appear to be the case. His Honour's Reasons do not demonstrate to me that he fully appreciated and considered the importance of the s.24(1)(a) factors, or the present needs and desires of the Child. His failure to do so, in my view, constitutes an error in law, both from the point of view of his failure to fully accept the findings of the First Trial Judge, and in the misapplication of the provisions of s.24(1). [50] In the circumstances, I do not feel that it is necessary to deal with His Honour's brief views expressed on the other provisions of s.24(1) other than to note that with regard to sub-para. (e), the capacity of the Appellant Grandmother was known, while the capacity of the biological Parents was unknown. In this regard see the decision of Newbury J., when in this Court, in Watson v. Watson, [1991] 35 R.F.L. (3d) 169, which was referred with approval by Chief Justice McLachlin in Gordon, particularly p.175 in para. 21. The change in circumstances, here the relocation, would not affect the Child such that it would no longer be in his best interests for the existing order to stand. Indeed, it apparently has had little affect on the Child, save for the discomfort or inconvenience in travelling. However, the affect on the Child of the change in custody would likely have been far reaching; and there was no basis for His Honour to gamble on the unknown capacity of the biological Parents to care for and nurture the Child at the expense of the obvious dislocation of the excellent situation which existed with the Appellant Grandparents. [51] His Honour then went on to set out factors which he considered favoured the Respondents as custodial parents; that they are the Child's natural parents and, all else being equal, are the persons who should raise him, that they are not strangers in his life and that they are capable of caring for him. He then set out the factors which in his view did not favour the Respondents; that the Child had not resided with them for the majority of his life, and that their extended family and friends in Mackenzie "have inserted stress into the Child's life by their spiteful conduct towards the Appellants"; what might be described as major negative factors. [52] His Honour next set out factors which he felt favoured the Appellants as custodial parents; that the Child has been in their care for the majority of his life, "they have essentially raised him", the Child has adjusted well into the new Williams Lake community, the relocation had removed the Child from the conflict emanating from the relatives in Mackenzie, and that the Grandparents have established themselves as excellent caregivers for the Child; which might be described as major positive factors in deciding that it was in the Child's best interests to remain in the custody of the Grandparents in their new location. [53] In para. 88 His Honour deals with the "factors against the Respondents", (here the Appellants) as the custodians of the Child, as (a) By moving the Child out of Mackenzie without reasonable notice to the Applicants, they have made access to [the Child] more difficult for the Applicants; (b) By unilaterally changing the Applicants' access days, they have demonstrated a greater likelihood of not abiding by a court order giving access to the other side when it does not suit their purpose. [54] With reference to sub-para. (a), I do not appreciate why the failure to give reasonable notice made access more difficult, although in fact access was made more difficult. With regard to sub-para. (b), in my opinion, there is no basis for His Honour's conclusion of "greater likelihood". Further, it seems to be based on the evidence of the Respondent, T.M.W., which His Honour heard, and is contrary to the decision and the views and findings of the First Trial Judge, including the credibility of the evidence of the Appellant, N.L.W. versus that of the Respondent T.M.W.; who heard all about the "corrosive relationships" between the parties, and expressed his opinion that things would be "much uglier" in the event that the Respondents were given custody. Again, the change was satisfactorily explained by the Appellants, and was justified, and the Respondents had to acknowledge that while they did not receive the access pursuant to the court order, they received much more access than that which was provided in the order. [55] It appears to me that even if sub-paras. (a) and (b) of para. 88 are accepted, they could not possibly be grounds for changing the custody in the circumstances of this case, including the findings of both the First Trial Judge and the Trial Judge. It is not a matter of the weight to be given to the evidence. Rather, it is a lack of evidence which would support His Honour's ultimate conclusion. Further, these sub-paragraphs contain the "worst" that could be said, or found, by the Trial Judge, against the Appellant, N.L.W., although they are contrary to the views and findings of the First Trial Judge. In any event, they do not detract from the Grandparents' care and nurturing abilities, demonstrated over a ten year period, nor do they go to the best interests of the Child. Indeed, if they were actual problems they could quickly be dealt with by Court order. There is no basis for the prominence given these two factors by the Trial Judge. [56] In para. 89, His Honour notes that the principal issue is the best interests of the Child, that the focus is on that interest and not the interests and rights of the parties. He also states: (b) Parental claims must not be lightly set aside. They are entitled to serious consideration in reaching any conclusion and should be set aside only where it is clear that the welfare of the Child requires it. (My emphasis added). Again, with respect, His Honour emphasizes the dominant thrust of his reasoning, that parental claims must not be lightly set aside period; now stripped of all context, and specifically the facts in this case, primarily the previous Judgment of the First Trial Judge and ten years of exemplary care and nurturing by the Grandparents, which show that the Learned Trial Judge simply ignored or misapprehended material evidence and applied the wrong law to that evidence. [57] I observe that, as in most cases, His Honour's statement of law was correct as far as it went. However, it is clear that he relies on cases of first instance where the contest was between a parent and the grandparents as to the custody of the child, which is not the case here. The approach ignores the fact that there is an earlier Judgment deciding all of the issues between the parties, by which the Trial Judge was bound; the only additional factor to be considered in this case being the impact of the relocation on the Child on his best interests. In my view sub-para. (b) is an example of His Honour's approach, seen throughout, to the issue before him, which was far more concerned with the Respondent biological Parents' rights, which he misconceived and based on law which was not applicable to the actual facts, found by both judges, than with the impact of relocation on the Child and his best interests. [58] In para. 90, His Honour refers to counsel's argument that the best interests of the Child required that he remain in the custody of the Appellants because he had lived with them for the majority of his life, and because he had done well in his new environment in Williams Lake; which, I observe, was found to be the case by both judges, and which in my view are very strong points in favour of the Appellants and which could not be countered. He then goes on to say "while these are strong arguments, they lose some of their force on further consideration". [59] In para. 91, His Honour refers to a "further consideration" being that the Appellant Grandparents had resisted any efforts by the Respondent Parents to reinsert themselves as the Child's caregivers. In this regard he says, after noting the Appellants' mistrust of the Respondents' wishes to resume the mantle of caring for the Child (a finding which the First Trial Judge made as well): They cannot be completely faulted for believing this. Nevertheless, it is difficult to be critical of the [Respondent's] by saying that they have not been involved in the raising of [the Child] when the [Appellants] have opposed any such efforts. (My emphasis added). [60] It appears to me, again, that these findings of fact must have been made by the Trial Judge on the basis of evidence he heard, which in my view should not have been before him, and which in any event, was contrary to the First Trial Judge's findings and his conclusions. While access was not an issue before the First Trial Judge, it is clear that he had before him the evidence of the Respondents as to their perceived hostility of the Appellant, N.L.W., and complaints about access. [61] Again, putting before the Court evidence pertaining to the Appellant Grandmother, which was clearly in conflict with the findings of the First Trial Judge, should not have been allowed, even though it was led under the guise of access evidence specifically said to have not been before the First Trial Judge. In my opinion, there is no basis for the Trial Judge's conclusion. [62] Further, it again goes to a form of "fault" on the part of the Appellant, N.L.W., i.e., that she substantially contributed to the fact that the Respondents were not involved in the raising of the Child. I say again that whatever evidence the Trial Judge relies on for these conclusions about the Appellant, N.L.W., should not have been put before him, and there is no acceptable evidence before this Court to support this finding. It is contrary to the findings of the First Trial Judge, who was greatly impressed by the Appellant Grandmother, with both "her directness and her apparent sensitivity to some very difficult issues", and who described her care and attention of the Child as "above reproach". On the other hand, it is clear that he was of the opinion that the Respondents still lacked maturity, that their application for custody reflected a stage of the Respondent Mother's personal growth much more than calm reflection about how the application would affect the Child; that it came about, at least in part, from their own agenda rather than being out of a single minded pursuit of the Child's happiness. [63] In para. 92, His Honour deals with what appears to be another "further consideration", which ends up as another attack on the Appellant Grandmother, as forewarned by the Respondents' counsel. I will set out the entire paragraph: There is no dispute that [the Child] has adjusted very well to his relocation in Williams Lake. It must be remembered however that he has lived most of his life in Mackenzie and a return there would not mean a shocking new environment for him. Despite a dispute on the facts about how much notice the Applicants [the Respondents] were given that [the Child] would be moving to Williams Lake, it is clear that this action was taken without any consultation or input from the Applicants [the Respondents] and with very little notice. Mr. Czepil argues that the Respondents [the Appellants] were under no obligation to consult or seek input with the Applicants [the Respondents] because the Respondents [the Appellants] had custody. I concede that any consultation would not have been easy because of the animosity which existed between the parties. However, a refusal to attempt any consultation undermines the position of the Applicants [the Respondents] as [the Child's] parents. It reflects an attitude on the part of the Respondents [the Appellants] that, because the Applicants [the Respondents] had behaved irresponsibly in their youth, their opinions on their son no longer matter. With respect, such an attitude is not in [the Child's] best interest. (My emphasis added). [64] My only comment on these assertions or findings against the Appellants is that they simply cannot stand in the face of the findings of the First Trial Judge, particularly with regard to the Appellant Grandmother. Again, if there was any basis for them, and in my opinion there is not, the failure to consult or seek input in the circumstances were clearly understandable, even given the findings of the Trial Judge as to the constant hostility the Appellants faced from the Respondents and their relatives in Mackenzie on a daily basis, and the fact that the Child thereby benefited from the relocation. The Trial Judge described them as intent on fuelling the hostility against the Appellants. Further, and again, His Honour's approach is more focused on the Respondent Parents' rights, rather than on the best interests of the Child, when he emphasized that insufficient notice was given to the Respondents, they were not consulted about the move, that the move made access for them more difficult, and that the Appellants changed the Respondents' access unilaterally; while at the same time essentially ignoring the findings of the First Trial Judge and the fact that the Grandparents had done a stellar job in caring for and nurturing the Child over a period of ten years. [65] His Honour then goes on to find, with some reluctance, that the Child's best interests lie with the Respondents, and awards custody to them in para. 93. He then states in para. 94: The reasons why I am of the opinion that it is in [the Child's] best interests for custody to be awarded to the Applicants [the Respondents] are: (a) as [the Child's] parents, their claim for custody must be given serious consideration and must not be set aside unless it is in [the Child's] best interests to do so; (b) they are not strangers in [the Child's] life. While [the Child] has not lived with them for most of his life, in the recent past they have actively pursued involvement in his life by seeking a quality and quantity of access to the Child. They have fought for a greater role in his life despite resistance from the Respondents [the Appellants]. I find that they have done so motivated by their love for their son and a desire to right their past mistakes; (c) they are now capable of parenting the Child, of supporting him and of providing an education for him in a community that he is familiar with; (d) there is a greater likelihood that they would respect the place of the Respondents [the Appellants] in [the Child's] life more so than the Respondents [the Appellants] would respect their role as [the Child's] parents if the Respondents [the Appellants] were awarded custody; (e) I am of the view that the Applicants [the Respondents] are more likely to follow the terms of any court order for access to the Respondents [the Appellants] than the reverse and that the Applicants [the Respondents] are more likely to honour the letter and the spirit of any court order in this matter. [66] I will return to these findings in a moment when dealing with Mr. Czepil's submissions. However, at this point I will observe again that His Honour's entire Reasons, set out in sub-paras. (a) to (e), are focused on the Respondent Parents and their parenting rights and not on the best interests of the Child; that there is no basis for the conclusions contained in sub-paras. (d) and (e), which are in fact contrary to the findings of the First Trial Judge who obviously favoured the Appellant Grandparents on the question of credibility, and who found that the hostility between the parties rested much more heavily on the Respondent Mother's shoulders than it did on the Grandmother's, and said at p.10: I am concerned that if custody were varied such that [the Respondent, T.M.W.] obtained custody at this point the relations between the parties would be much uglier than if the reverse occurred. For that reason as well I am bolstered in my conclusion that [the Child's] best interest is that he remain in his continued residence with his Grandparents. Further, even if the conclusions in sub-paras. (d) and (e) could be said to be accurate, they do not go to, or take away from, the excellent parenting skills of the Appellants, demonstrated over the years, nor do they go to the best interests of the Child. Again, they hardly can be found to be a basis for the change of custody. Finally, if they represented any problem, they could be readily dealt with by court order. [67] I have already dealt with the contents of sub-para. (a). It seems clear to me that His Honour was of the view that the biological Parents' rights was the paramount factor in this case, elevating them (wrongly) to a position of critical importance in determining the best interests of the Child. In sub-para. (a) His Honour relies on earlier cases referred to by him, where the dispute was between a parent, or the parents, and the grandparents in the first instance, as to who should have custody. In those cases it is said, in effect, that all things being equal, in a contest for custody of a child, custody should be awarded to the parents, unless there are grave reasons for concern about the welfare of the child being with the parents. But in the cases referred to, the child had not lived with the grandparents and received excellent care from them for a lengthy period of time. Nor had the dispute already been resolved, as in the case at Bar, in a previous hearing. Here, the issue of who should have custody has already been resolved, after careful consideration, by the First Trial Judge. The Trial Judge was bound by his findings, and had to defer to them. His Honour's task was to accept the findings of the First Trial Judge and to then consider what was the impact of the change in location on the Child and whether it was such that there should be a change in custody in the best interests of the Child. [68] With regard to sub-para. (b), I again say that there is no basis for His Honour's finding that the Respondents had fought for a greater role in the Child's life despite resistance from the Appellants, again attributing some form of fault against them; evidence of conduct which the Trial Judge should not have considered by virtue of s.24(3). Further, there was no evidence to support these findings before the First Trial Judge. The evidence was to the contrary. The Respondent Parents never at any time applied for custody, although they did apply for access on June 20, 2003, when an interim order was obtained by consent. It seems that their only application for custody occurred when during a case conference the Provincial Court judge stated that someone was going to have to have custody, and then place the issue on the trial list. [69] In any event, as I stated earlier, even if the Respondents' harassing conduct, for example, attending at the Appellant's home on a daily basis, in violation of the specific provisions of the consent order, can be described as fighting for a greater role in the Child's life, and that the Respondents were attempting to right their past mistakes, these factors surely cannot be grounds for changing custody in these circumstances, including the findings of the First Trial Judge. Again, His Honour gives prominence to contextually minor factors, while at the same time diminishing paramount factors such as the care and nurturing provided to the Child by the Grandparents over an extensive period of time, and the fact that the change in circumstances has had little affect on the Child. In my view, this is more than His Honour simply weighing the evidence. His findings in sub-paras. (a) and (b) of para. 88 and in sub-paras. (d) and (e) of para. 94, constitute palpable and overriding error. THE NATURE OF THE PROCEEDING [70] The proceedings which took place before the First Trial Judge were described as a trial, where witnesses were called and so on. However, it appears that what was before the First Trial Judge was an application by both sides for custody of the Child. In the end, the First Trial Judge granted custody to the Grandparents, the present Appellants, and dismissed the application for custody by the biological Parents, the present Respondents. [71] The proceedings before the Trial Judge are also described as a trial. And again, witnesses were called to testify over a five day period, including the parties, a friend of the Mother's, the Child's school teacher, his music teacher, a member of the Parents Support Group at the school, and the Mother's sister-in-law and the Mother's sister. The evidence led included evidence of further hostility and harassing conduct by the Mother towards the Grandmother, the Grandmother addressing the Mother abusively and with profanity, other negative evidence about the Grandmother, and conflicting evidence as to access problems. [72] During the proceedings before the Trial Judge, counsel for the Respondents attacked the credibility of the Appellant Grandmother in a number of areas, mostly areas and issues already considered and resolved directly or indirectly, by the First Trial Judge, which counsel for the Appellants referred to as the overlapping evidence. The evidence was objected to, but was allowed in on the basis that it was background evidence. [73] Arguably the purpose of the Respondents' counsel bringing out this evidence was to deprecate the character and credit of the Appellant Grandmother, who obviously had impressed the First Trial Judge. I say this for two reasons. First, during his submission on January 13, 2005, before the Trial Judge, counsel for the Respondents had this to say: MR. FATT: We now ... I'll ... and finally, I guess, I'd like to say to Your Honour that I noted there's no affidavit material from [N.L.W.] saying that she didn't move for an improper circumstance. I'm going to say, or at least I expect my witnesses will give some evidence that it is their perception that she in fact did that. THE COURT: Whether she did or not I mean that will be an issue at the trial, I think. MR. FATT: It certainly will. Yes. THE COURT: Yeah. MR. FATT: And ... but we shouldn't consider ... the other thing is, we can't ... it will also be the evidence at this trial ... I ... I wasn't trial counsel at the last trial. It will not be my clients' position that [N.L.W.] has had care of the child since the child was born. It'll be ... that'll be a ... the evidence that my clients will give will be substantially different, and you'll forgive me if I have objected to the reasons being handed up, but I hope that at the end of this case, Your Honour will make a substantially different finding than did Judge B. based on the evidence that Your Honour will hear. So, I don't take it as a given that the child has given ... his lived its whole life with [N.L.W.]. There has been bad patches, yes, and we're prepared to deal with that. (My emphasis added) I reference the transcript dated January 13 and 14, 2005 at p.16, lines 19-47. [74] What counsel was objecting to was the Reasons for Judgment of the First Trial Judge, which were binding on the Trial Judge, being placed before the Trial Judge. It is seen also that counsel was alerting the Trial Judge that he proposed to call evidence which would be contrary to the findings of the First Trial Judge in those Reasons, for example, that the Child had been raised by the Grandparents for almost his entire life, for the stated purpose of persuading His Honour to make a "substantially different finding" than that made by the First Trial Judge. Counsel should not have been permitted to call this, or any contrary evidence, whether evidence which the First Trial Judge had already heard and rejected in favour of the evidence of the Appellants, or simply any evidence contrary to his findings. [75] Second, on May 19, 2005, when the hearing resumed, counsel for the Respondents had this to say to the Trial Judge: THE COURT: I think, just before you move on to that point, though ... I mean ... and I think you ... this is the point that you've just made, that regardless of what decision is made at the outcome of this case ... I mean, [N.L.W.] does deserve credit for ... for raising [the Child] because all the evidence ... . MR. FATT: And my client said that. She's given evidence to that effect and ... and ... . THE COURT: All the evidence that we've had from everybody is that he's a ... he's a ... he's a great kid. I mean ... . MR. FATT: Sure. But he's not just a great kid with [N.L.W.]. And of course, she deserves ... she deserves a lot of credit for that and my ... . THE COURT: But I mean he ... he was living primarily with her so certainly she deserves a lot of credit for that. MR. FATT: Absolutely. THE COURT: And I'm not saying thats determinative of this case. MR. FATT: No, of course not. THE COURT: But ... But I take it there's certainly no argument about that. MR. FATT: No, there's ... and that's ... and that's been ... that's been the evidence of my clients and the evidence of our witnesses. THE COURT: Okay. MR. FATT: But there are severe problems with ... with [N.L.W.]'s care and I have to argue those. THE COURT: All right. MR. FATT: And I will. But ... if there were no problems, we wouldn't have a case. There has to be something that when you, when you now are comparing the two households, there has to be something that's going to tip the balance in favour of one than the other and there's no ... theres no ... I don't know. (My emphasis added). I reference the transcript of evidence date May 19, 2005, p.22, line 19 to p.23, line 9. I observe that it would appear that His Honour overlooked counsel's admission, or that he did not appreciate its significance, and the narrowing of the issue to one which had already been determined by the First Trial Judge. [76] I am concerned with this approach because what was before the Trial Judge was an application to vary the existing order of the First Trial Judge, on the basis of a material change in circumstances, the move by the Appellants and the Child to Williams Lake. As a matter of law, the Trial Judge was bound to accept the First Trial Judge's decision and findings, including those pertaining to the Appellant, N.L.W., including her credibility; he should not have been hearing evidence other than evidence pertaining to the change in location and its effect on the Child; his role was a restricted one, to conduct an enquiry based on the findings of the First Trial Judge who made the earlier order, and on the evidence of the new circumstances, in order to ascertain what was in the best interests of the Child, considering both the old and the new circumstances. The importance of the Child remaining with the Grandparents whose custody he had become accustomed to, in the new location, was to be weighed against the continuation of full contact with the Child's biological Parents and their extended family. [77] In this regard in Gordon, McLachlin J., as she then was, speaking for the majority, set out the principles which govern an application for a variation of an order relating to custody and access. At p.42: The principles which govern an application for a variation of an order relating to custody and access are set out in the Divorce Act. The Act directs a two-stage enquiry. First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances. (My emphasis added). [78] Before the Court can consider the merits of the application for variation, it must be satisfied that there has been a material change in the circumstances of the child since the last custody order was made. At p.43: The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The Court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987) 8 R.F.L. (3d) 139 (B.C.C.A.), other citations omitted. What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: McCallum v McCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover the change should represent a distinct departure from what the Court could reasonably have anticipated in making the previous order. "What the Court is seeking to isolate are those factors which were not likely to occur at the time the proceeding took place": J.G. McLeod, Child Custody Law and Practise (1992) at p.11-5. (My emphasis added). [79] In the case at Bar it is conceded by the Appellants that the move to Williams Lake constituted a material change in circumstances. I presume that this admission is based on the diminishment of the Child's contact with the Respondents, establishing a connection between the relocation and the needs and circumstances of the Child; because in Willick, Mr. Justice Sopinka, speaking for the majority at p.688, defined material change of circumstances as meaning a change "such that, if known at the time, would likely have resulted in different terms". In this regard I am quite certain that had the First Trial Judge been appraised of the fact that the Appellant Grandparents wished to move with the Child to Williams Lake, he would not have ordered any different terms, other than perhaps more specific terms as to access for the Respondents in the circumstances of the move. In any event, the decision has been made. [80] With regard to the test to be applied, it is said at p.45 of Gordon: The threshold condition of material change in circumstances satisfied, the Court should consider the matter afresh without defaulting to the existing arrangement: Francis v. Francis (1972), 8 R.F.L. 209 (Sask. C.A.) at p.217. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v. Willick, supra, at p.688 per Sopinka, J.). The judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p.194) to decide what custody arrangement now accords with the best interests of the child. The threshold of material change met, it is error for the judge on a variation application simply to defer to the views of a judge who made the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist. (My emphasis added). [81] At p.46 the Chief Justice observes that the enquiry to be conducted by the Trial Judge cannot be confined to the change alone, isolated from other factors bearing on the Child's best interests; a qualification which seemingly is not as extensive as it suggests, given Her Ladyship's statement of the task of the reviewing judge earlier on, as well as subsequently. The reviewing judge must embark on a fresh enquiry into what is the best interests of the child then, having regard to all the relevant circumstances relating to the child's needs, and to the ability of the respective parents to satisfy them, based on the findings of the judge who made the previous order, and on the impact to those needs and abilities by the change. [82] Madam Justice McLachlin referred to the decision of L'Heureux-Dubé J., speaking for the minority, in Willick, a case in which the application was to vary a prior order pertaining to child support, which is of some importance. The minority did not disagree with the majority with regard to the disposition of the appeal, that it should be dismissed. They did differ as to whether or not the law of support required sensitivity to the social realities experienced by those most affected. [83] In Willick at 734-35 Madam Justice L'Heureux-Dubé had this to say when discussing the scope of review of support orders: Once a sufficient change that will justify variation has been identified, the Court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support order itself. For the reasons below, I believe that it is artificial for a Court to restrict its analysis strictly to the change which has justified variation. Moreover, while a variation hearing is neither an appeal nor a trial de novo, where the alleged change or changes are of such a nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order. (My emphasis added). I observe at this point that there is no suggestion in this case that the change in location is of such a nature or magnitude as to make the original order irrelevant or no longer appropriate; and I see no need for the Trial Judge's review to have reconsidered the circumstances underlying, and the basis for, the First Trial Judge's custody order in this case, if this means to go behind his decision and findings, which would be a fundamental change in the task of the reviewing judge. [84] Madam Justice McLachlin then continued at p.46: The same principle holds true when an applicant is able to demonstrate a material change in circumstances in a custodial variation proceeding. In order to determine the child's best interest, the judge must consider how the change impacts on all aspects of the child's life. To put it another way, the material change places the original order in question; all factors relevant to that order fall to be considered in light of the new circumstances. What principles should guide the judge on this fresh review of the situation? This inquiry takes us to the last clause of s.17(5) of the Divorce Act: "... in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change". The amendment to the Divorce Act in 1986 ... elevated the best interests of the child from a "paramount" consideration, to the "only" relevant issue. (My emphasis added). The instruction appears to be clear. In order to determine the child's best interest, the Judge must consider the effect of the change on all aspects of the child's life. [85] I observe at this point as well that I have concluded that the Trial Judge did not focus on the narrow issue before him, which was to balance the benefits derived from custody continuing with the Grandparents against the desirability of maintaining generous contact between the Child and his biological Parents; that had he done so and placed less (the proper) emphasis on the parenting rights of the biological Parents, he would have found that the Child's needs were far more likely to be best served by remaining with the Grandparents, a consideration which clearly overwhelms the reduction in contact with the biological Parents. [86] And at p.60, after rejecting the submission that there should be a presumption in favour of the custodial parent, and that the enquiry should begin with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof: While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial grandparent's parenting ability. (My emphasis added). I observe, again, that the relocation, on the evidence and findings of the Trial Judge alone, was necessary, and this is not the case of an improper motive reflecting adversely on the custodial Grandparents' parenting ability. [87] With regard to the reduction of beneficial contact as a result of relocation, Her Ladyship had this to say at p.49: The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the Child. If the Child's needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parents, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the Child. (My emphasis added). While the dispute here is between Grandparents and biological Parents, there would seem to be little doubt that access to the biological Parents should be beneficial to the Child, particularly now that he and the Grandparents have moved away from the constant hostility and stress experienced in Mackenzie. However, as I have already stated, in my view it is clear that the Child's best interests are best served by remaining with the custodial Grandparents. [88] At p.60, Her Ladyship summarizes the law as follows: 49.1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly, the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving only in the exceptional case where it is relevant to the parent's ability to meet the needs of the child; (f) disruption of the child of a change in circumstances; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? (My emphasis added). [89] At the risk of being repetitive, it is to be emphasized that in this case the Trial Judge was required to weigh the importance of the Child remaining with the Grandparents in Williams Lake against the continuance of full contact with the Child's biological Parents, their extended family and its community. Again, the ultimate question was what is in the best interests of the Child in all the circumstances, old as well as new? I observe also that in the present case it is clear that the continuation of full contact with the biological Parents and the Child's extended family in the community of Mackenzie could not be described as beneficial, given the constant hostility and stress flowing from the Respondents and their extended family, and focused on the Grandparents, at their home and in the community, as found by both Judges. [90] I pause to point out at this point that while Gordon dealt with the provisions of s.17 of the Divorce Act, the variation application in the case at Bar was brought under s.24 of the Family Relations Act, and the provisions of the two Acts differ in some respects. However, the provisions of s.16 and s.17 of the Divorce Act R.S.C. 1985, c.3, and the analysis in Gordon, generally speaking, has always been considered to be guidelines to be considered and followed by this Court when dealing with an application to vary a Court order under the provisions of s.24 of the Family Relations Act. [91] The point was considered by Warren J. in Bruce v. Bruce, [1997] B.C.J. No. 396. There, with reference to Gordon, both counsel said that although the decision dealt with the variation of a custody order made under the Divorce Act, the general principles respecting custody and access are applicable to all applications to vary custody. His Lordship disagreed, although to a limited extent. He noted that the approach to an application to vary an order under the Divorce Act is driven by the precise words in s.17; that there is a significant difference in wording between the variation sections of the two Acts. I observe that s.24 is not as specific as s.17. [92] His Lordship then went on to briefly compare the two sections, noting that under s.17 the Court must be satisfied that there has been a change in the condition, means, needs or other circumstances (a material change in circumstances) since the making of the last order. If there is, then the Court should take into consideration only the best interests of the child as determined by reference to that change. While under s.24 the Court must give paramount consideration to the best interests of the child, and in assessing those interests must consider the effect of the factors set out in sub-para. (a) and (e) and give emphasis to each factor accordingly to the child's needs and circumstances. [93] His Lordship went on to state that while the requirement that there be a material change in circumstances is specifically statute driven in s.17, in his view the same principle of a "threshold" applied to the application under the Family Relations Act, "if for no other reason than an application cannot operate as an appeal". I agree, for it is in the context of a prior Court order determining custody that an applicant wishing to vary that order must show a material change in the circumstances affecting the Child, by statute under the Divorce Act, and by jurisprudence, and perhaps implication, under the Family Relations Act.. [94] Mr. Justice Warren concluded his reasoning on the point as follows: 11. The change, whether the application is under the Divorce Act or the Family Relations Act, must represent a clear or distinct departure from what the Court then knew of the circumstances or could reasonably have anticipated when making the order. The change must be a material change. 12. The Family Relations Act requires the Court to approach this paramount consideration by weighing the factors and satisfying itself that there has been a change which affects the health and emotional well being of the Child. The Court must also consider, where appropriate, the views of the Child, as well as the love, affection and similar ties that exist between the Child and other persons. Further, the Court must consider the affect of the change on the education and training of the Child, and the effect of the change on the capacity of each person to exercise custodial or access rights. The Court's approach should attribute the appropriate emphasis for each of these factors to the Child's needs and circumstances. [95] Returning to Gordon, Her Ladyship disposed of the case before her at p.62: This case requires the Court to balance the benefits deprived from continuing custody with the mother against the desirability of maintaining generous contact between the child and her father, as well as her extended Canadian family and her Canadian community. The fact that the child has been in the custody of the mother for some years, that the reasons for initially granting the mother custody have not been shown to have substantially changed, and that a change of custody at this time would probably be highly disruptive to her, argue in favour of the mother retaining custody. On the other hand, the child's access to her father, with whom she enjoyed a close relationship, has been greatly diminished as a consequence of her mother's move, and the child has been removed from her extended family and community in Canada. These factors are somewhat attenuated, however, by the fact that the father has the means to travel to Australia and spend time with the child and that she could return to Canada for periodic visits with her family and community in Saskatchewan if the terms of access were varied. (My emphasis added). [96] I observe that in para. 66 of his Reasons, the Trial Judge refers to Gordon and sets out the Chief Justice's summary in that case commencing at para. 49, which I have just set out in para. 88 of these Reasons. In para. 67, His Honour notes that the parties concede that the "threshold requirement of demonstrating a material change in the circumstances affecting the Child" has been met, as a result of the Child's change in location; that the move was not contemplated by the First Trial Judge when he made his order. His Honour then continued: Having found this threshold to be met, I must now embark on a fresh enquiry as to what is in [the Child's] best interests. In doing so, I am [sic] base my enquiry on the {First Trial Judge's] findings of fact as well as any evidence of new circumstances. (My emphasis added). [97] I observe again that while His Honour correctly states the law pertaining to his enquiry as set out in Gordon, he failed to conduct his enquiry in accordance with that law, by not in fact taking all of the First Trial Judge's findings of fact as correct, and in allowing evidence to be given before him of matters directly or indirectly in conflict with the findings of the First Trial Judge, and most importantly, in wrongly elevating the biological Parents' rights to a status equivalent to a rule of law, or at least a presumption. See in this regard A.H.P. v. C.A.P. [1999] B.C.J. No. 696, 1999 B.C.C.A. 203. The biological Parents' parental rights are but one of several considerations, including stability, a lengthy status quo and bonding with the custodial parents. [98] Before turning to the grounds of appeal, or the issues, Mr. Czepil made the following general observations in his oral submission. He commenced by emphasizing the fact that for over ten years (it is now eleven years) the "only" parents the Child knew were his Grandparents, and his primary caregiver was his Grandmother. The First Trial Judge found that over this period of time their loving care and nurturing of the Child was exemplary. There is no evidence to the contrary, notwithstanding attempts by the Respondents in evidence, and their counsel in submissions, before the Trial Judge, to establish "problems" in the Grandparents caring for the Child, contrary to the express findings of the First Trial Judge. [99] Counsel said that no case had been cited, and that he had not been able to find one, where a child was "moved" from his custodian parent after so long a period, absent any risk to the child. Counsel emphasized that during submissions counsel for the Respondents admitted, and rightly so, that he had to argue that there were "severe problems with the Grandmother's care" and "I have to argue those" and that "if there were no problems, we wouldn't have a case". I reference transcripts of proceedings of May 19, 2005 at p.22, line 47 to p.23, line 19. [100] In this regard it is my view of the law that in the circumstances of this case, in order for the Respondents to have succeeded before the First Trial Judge, they would have had to establish at a minimum that the Child was seriously at risk if he continued to live with his Grandparents, and under their care and nurturing, or that a move to the Respondent Parents would constitute a very substantial betterment to the Child, so that it could clearly be said that a change in custody was in the best interests of the Child. The change in circumstances must affect the Child such that it would no longer be in his best interests for the existing order to stand. Clearly that is not the case here. Further, such evidence, as noted by the First Trial Judge, was not before him. I again note that this is not a case where it is clearly made out that the Respondent Parents intended to give temporary custody to the Grandparents on an interim basis and then took reasonable efforts to regain custody. Finally, I do not wish to enter into the "status quo" debate. However, I observe that for over ten years the Child has been in the care of his Grandparents in a stable, secure and nurturing environment in which he has thrived, and continues to do so. [101] Counsel noted that the Trial Judge ignored counsel's admission, "which was made in accordance with the law", and ordered that custody be changed, and the Child returned to his biological parents, while at the same time finding that over a period of ten years the Grandparents had done an impeccable job caring for the Child who continued to be quite happy and doing very well. [102] Counsel submitted that because of the previous adjudication on the competing claims for custody, the cases relied on by the Trial Judge were irrelevant. They were not variation application cases. The Trial Judge proceeded as if there was no previous Judgment ever given, and his analysis was flawed. This is not a case where all else was equal. The contest between the parties was adjudicated on by the First Trial Judge. It was not a case of parents agreeing to give temporary custody to the grandparents intending that it would not be a permanent situation. The First Trial Judge's Reasons, his findings and the conduct of the Respondents, show that such a finding was not open to the Trial Judge. [103] Counsel submitted that what the Trial Judge did was to treat the case as a parenting rights case, rather than a best interest of the child case, while sitting as an appellant judge of the First Trial Judge's decision. While on other occasions he proceeded as if no earlier Judgment had ever been given. The evidence with which he should have been concerned does not support his conclusions. [104] The Trial Judge should not have been considering evidence, other than the First Trial Judge's Reasons, and that pertaining to the change in location and its impact on the Child. He should not have made findings of fact, in the circumstances earlier described, particularly when they were in conflict directly, or by implication, with those made by the First Trial Judge. His inquiry should have been based on the findings of the First Trial Judge, who made the previous order, and the evidence of the new circumstances and their effect on the Child. The focus should have been on the best interests of the Child, not on the interests and rights of the biological Parents, whose interests or agenda did not fully satisfy the First Trial Judge, and who did not persuade him that the "flourishing child would benefit in any way from a change of his custodial environment". [105] Counsel emphasized, and it is of some importance, that nothing changed other than the relocation of the Grandparents and the Child. The Child continued to receive the exemplary care and nurturing he has received since day one from his Grandparents, and he was still happy and doing well in his new school and community. The only change was the inevitable limitation to the Respondents' access rights, and which involved the Child being in a vehicle for about ten hours every second weekend, and which has some risk during the winter months. [106] In this regard I observe that the access regime worked out by the Trial Judge for the Appellants could apply equally to the Respondents if the Appellants had maintained custody. I point out also that in many of these cases the Courts have alleviated to some degree the impact of relocation by awarding the non-custodial party less frequent, but longer, access or visitation rights, including more time with the Child during holidays and vacations. This was done in Gordon. The only impact of the relocation in this case then was the travel, and the attendant inconvenience to the Respondents, to which I have referred. Finally, I note that the Trial Judge observed that the Appellants attempted to lessen the access problem by suggesting the reduction of the number of visits, and making them much longer. However, the Respondents did not respond to the suggestion. [107] It will be seen that in my opinion when weighing the importance of ten years of exemplary care and nurturing by the Grandparents, and the continuing stability and continuity of such care, against the inconvenience and perhaps some diminishment of the Respondents' access, as a result of the relocation, the former argues most strongly in favour of the Child remaining in the care and custody of his Grandparents. In my view the Trial Judge erred in taking away the care and custody from the Grandparents and granting it to the biological Parents in the circumstances of this case. In doing so the Learned Trial Judge simply ignored ten years of exemplary care and nurturing by the Grandparents, and the findings made by the First Trial Judge, all of which were in the best interests of the Child, in favour, in effect, of the blood ties of the Respondents to the Child, and their unknown ability to satisfy the interests and needs of the Child, and full access to the Respondents in a continuous hostile and stressful environment, which of course is not in the Child's best interests. The Trial Judge fell into error when he failed to apply the test or standard set out in Gordon. [108] I turn now to the issues or grounds of appeal, set out in Mr. Czepil's outline of argument, commencing at p.3. In this regard I note that counsel's written submission was quite detailed, and that his oral submissions were quite lengthy, detailed and expansive. While I have considered, carefully, all of his submissions, I propose to deal in the main with his written submissions, although I have referred to his oral submissions from time to time, and no doubt will do so again. ISSUE NO. 1 The Learned Trial Judge Erred In Failing To Recuse Himself On The Grounds That He Presided At A Family Case Conference In This Matter And Statements Made By Him At The Family Case Conference Gave Rise To A Reasonable Apprehension Of Bias [109] I have anxiously considered the evidence on this issue and the Reasons for Judgment in which His Honour sets out the relevant law and his reasons for concluding that the Appellants did not meet the requisite high standard of showing a reasonable apprehension of bias to exist. I do not propose to deal with the subject matter further. As I have indicate, and with great respect, I am entirely satisfied that a real likelihood of bias has been demonstrated by the facts of this case. The Trial Judge determined that the Appellants should not have custody of the Child, as ordered by the First Trial Judge, having already expressly made that determination during the Case Conference of June 11, 2004. [110] It appears that the only remedy available on the basis of this finding is a new trial. I agree with counsel that this is not a "preferred result", given the further stress and costs to the parties of a further lengthy proceeding. [111] Counsel submitted that he hoped to persuade the Court that there were other grounds of appeal which would warrant the Court setting aside the Trial Judge's order and restoring that of the First Trial Judge; thus avoiding a further trial or hearing. I agree with counsel's approach, and have considered all of the other grounds of appeal put forth, on that basis, although success on one of them would suffice. However, these proceedings must come to an end, and if I am wrong on the other grounds, leaving only the first ground, then I make the necessary order that there must be a new trial or hearing. ISSUE NO.2 The Trial Judge Erred In Failing To Find That A Consideration Of The Health And Emotional Wellbeing Of The Child Weighed In Favour Of Leaving Custody Of The Child With The Appellant. [112] In paras. 79 and 80 of his Reasons for Judgment, the Learned Trial Judge commenced his required analysis under s.24(1) of the Family Relations Act, R.S.B.C. 1996, c.128. As I have already stated, the analysis is very brief, and perhaps may be described as neutral. [113] Section 24(1) of the Act provides: When making, varying or rescinding an order under this Part, a Court must give paramount consideration to the best interests of the child and, in accessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances. (My emphasis added). [114] The first factor is contained in sub-para. (a) which reads: (a) The health and emotional well being of the child, including any special needs for care and treatment; His Honour had this to say with regard to this factor: The evidence portrays [the Child] as being a healthy and well-adjusted Child. He does not have any special health needs and appears to be both physically and mentally healthy despite the turmoil brought into his life by the adults. No professional or psychological evidence was presented on this issue. The parties called friends or relatives of theirs who painted a picture of [the Child] as a happy child in both homes. The Respondents called evidence tending to suggest that tension was apparent in [the Child's] life when court dates approached. It would be unfair to attribute this to either side and it is hoped that with a conclusion to this litigation, [the Child] can get settled into his new life without the apprehension of an uncertain future. (My emphasis added). [115] Mr. Czepil submitted that His Honour was treating the health and emotional well being of the Child as a neutral factor. He said: It was not open to the Trial Judge to treat this as a neutral factor having regard to the evidence. The care which the Child had been provided by the Appellants was above reproach. He was thriving in his current environment. He had resided with the Appellants for almost all of his ten years. I agree. [116] In treating the health and emotional well being of the Child as a neutral factor, His Honour appears to have overlooked, ignored or misconstrued the significance of these findings, or simply drew an erroneous conclusion from them. It is true that the Child "appears to be both physically and mentally healthy despite the turmoil brought into his life by the adults", but the clear fact is that this was so because of the care and nurturing he received from the Grandparents for many years. The First Trial Judge attributed the state of the child's physical and mental health to his Grandparents (not to his biological Parents) from whom he was taking custody of the Child away, yet he does not appear to have considered the tremendous effect which the dislocation from the only environment and parents he had known, over some ten years, could have on the Child. [117] His Honour's view appears to be expressed in para. 95 of his Reasons where he says that he is mindful of the fact that in awarding custody to the Respondents, this would mean that initially there would be some upheaval in the Child's life; that the upheaval was lessened by the fact that he would be returning to live in a community (Mackenzie) in which he had lived for most of his life. He cites Grant v. Grant (1982), 25 R.F.L. (2d) 386 for the proposition that where the best interests of the Child required a change in defacto custody, it should be ordered notwithstanding that there will be some immediate discomfort to the Child. I would observe that the facts of Grant clearly distinguish it from the case at Bar, and that there is no basis to suggest that the best interests of the Child required a change in defacto custody, or that the change in custody would only result in some insignificant discomfort to the Child. On the contrary, I would suggest that this Court has witnessed the serious affects accompanying a dislocation of a longstanding, happy and nurturing home environment, can have on a child. I have already expressed my views that while relocation might result in some disturbance visited on the Child, (and it was relocation about which the Trial Judge should have been concerned) a change of custody would have a tremendous and injurious effect on the Child's physical and mental health. [118] In this regard I would observe that the First Trial Judge was clearly impressed with the exemplary care and nurturing the Child received from the Grandparents, emphasizing that stability and continuity of care were features to be highly prized in a child's up-bringing. He expressly found that the environment provided by the Grandparents was plainly positive and nurturing, that he had been doing well in school, that he was a happy well adjusted boy and that more than anything, all of this was a tribute to his Grandparents' care. [119] Counsel pointed out that in para. 78 of his Reasons, the Trial Judge correctly stated the law as set out in Johnson v. Johnson, [1999] B.C.J. No. 1738 (QL), wherein Smith J. states at p. 10: 54. Mr. Johnson has been the primary caregiver to Dustin and Meagan since the parties' separation. However, it is clear from Bell v. Kirk (1986) 3 R.F.L. (3d) 377 (B.C.C.A.) which followed the Alberta Court of Appeal decision of R. v. R. (1983), 34 R.F.L. (2d) 277, that the status quo arrangement does not hold the same importance in determining a final custody order as it may on determining an interim custody order. Moreover, the individualized inquiry into the best interests of a child mandated by the decision of Young, supra, and Gordon, supra, clearly rejects any analysis of "the best interests of a child" test based on a presumption in favour of the status quo. 55. Having said that, however, the status quo arrangement becomes increasingly more significant in determining what is in the best interests of a child the longer the arrangement has been in place. This is particularly so where the status quo has created a stable and secure environment for a child and there is no evidence that the child is not doing well in that environment. As Proudfoot J.A. recently noted in A.H.P., supra, at para. 23: Directly related to the health and emotional well being of the Child and almost always a consideration when looking at best interests, is an examination of those circumstances which will create the most stable, least disruptive environment for the Child. In assessing stability, one must decide what the "status quo" is for a given child. 56. The status quo not only relates to a specific geographical location, but also to a "way of life", that includes home, neighbourhood, school, church, friends, lifestyle and recreational amenities: Tucker v. Tucker (1994), 148 A.R. 306 (Q.B.). On the need for stability on a child's life Moore J. stated at page 313: If all else is equal, it would not be in any child's best interests to substitute an uncertain situation for a certain one. ... The onus of adducing evidence that it is in the best interests of the child to alter the agreement or status quo rests with the person seeking the change. (My emphasis added). [120] Counsel then stated in his written submissions: Although he correctly stated the law, he makes no reference to the undisputed evidence in his assessment of the emotional health and well being of the child. This is a care where a failure to refer to a particular piece of evidence gives rise to a reasoned belief that the Trial Judge "must have forgotten, ignored or misconceived the evidence, or has simply drawn an erroneous conclusion from it". I agree. As I indicated earlier, I have concluded that in reaching his conclusion the Trial Judge, in effect, simply ignored the First Trial Judge's findings and, more importantly, the fact that for over ten years the Child had received exemplary care and nurturing from his Grandparents, preferring instead his lofty view of the parental rights of the biological Parent, which he obviously views as having the status of a legal principle. In any event, he clearly did not give paramount consideration to the best interests of the Child and failed to give the emphasis clearly warranted by the sub-para. (a) factors. [121] The Judgment of the Court of Appeal, given by Madam Justice Proudfoot, in A.H.P. v. C.A. P. is interesting and informative with regard to the case at Bar. At p.3 Her Ladyship sets out the standard of review as follows: 16. The court is ever mindful of the need to respect the findings and hence the conclusions reached by trial judges. In the case of P.(D.) v. S.(C.) (1993), 108 D.L.R. (4th) 287, Madam Justice L'Heureux-Dubé, in the Supreme Court of Canada, said the following at 323: It is well established that a Court of Appeal must not interfere in the determinations and findings of fact made by a trial judge unless an error has been demonstrated. It is well-settled case law that a Court of Appeal will only intervene in a trial judge's findings of fact if the judge has made a manifest error, ignored conclusive or relevant evidence, has misunderstood the evidence or drawn erroneous conclusions from it... (My emphasis added). [122] She then goes on to apply these principles to the case before her: 17. In this case, the trial judge has made a manifest error both with respect to findings of fact and with respect to the application of relevant legal principles. As noted above, the trial judge seems to have ignored, or at least given minimal weight to the Custody and Access Report prepared by the Family Justice Counsellor. The trial judge also fell into legal error by focusing on the principle that "siblings should not be separated" as he interpreted it from Dawe v. Dawe, supra, while omitting consideration of other relevant legal principles which are dictated by both statute and jurisprudence. (My emphasis added). With respect, this is an apt description of what happened in the case at Bar, including manifest error in ignoring the exemplary care the Child received from his Grandparents, or at least giving it minimal weight, and by focusing on the "principle" that the parenting rights of the biological Parents were of critical importance. [123] In A.H.P., custody of the parties' three sons of the marriage had previously been granted to the father with the consent of the mother. The trial judge granted custody of the youngest child of the marriage, a daughter, to the father. The evidence was that the mother had been the caregiver to the daughter for her entire life, about seven years. A Custody and Access Report had been prepared. It recommended that the three boys remain on the form with their father, and that the daughter should remain with the mother. The trial judge concluded that it was in the best interests of the daughter for her to be with her brothers, concluding that the children should not be split up. It was found that the trial judge had leaned heavily , if not totally, on the principle that siblings should not be separated. [124] At para. 21 Her Ladyship refers to a passage in Mitchell v. Mitchell, [1998] B.C.J. No. 1684 (B.C.S.C.), a decision of Madam Justice Stromberg-Stein, as follows: In the past, certain factors have been singled out by courts as critically important to a determination of the child's best interest and, in fact, have been elevated to the status of rules of law, or more recently, presumptions. These include the "tender years" doctrine that young children should be placed in the custody of their mother, that courts should avoid splitting siblings, and that the status quo should be maintained wherever possible. In light of the broad "best interests" test, it is inappropriate to view the above factors as presumptions or as necessarily determinative. (My emphasis added). I would put any presumption favouring biological parents of a child in that category. I observe also that these matters were also discussed by Smith J. in Johnson. [125] Madam Justice Proudfoot then went on to state: 22. In the case at hand, keeping the siblings together is but one of several relevant considerations. While in no way suggested as an exhaustive list, other factors relevant to this case includes stability and security, the status quo, bonding with the custodial parent, and willingness to facilitate access. Moreover these factors are often inter-related and do not represent neat compartments which embody fixed criteria. Custody and access cases require an integrated assessment of all relevant factors and circumstances and an application of legal principles to the facts. (My emphasis added). [126] Finally, it bears repeating what Madam Justice Proudfoot said about the health and emotional well being of a child, which Smith J. referred to with approval in Johnson. It is contained in para. 23: Directly related to the health and emotional well being of the child and almost always a consideration when looking at best interests, is an examination of those circumstances which will create the most stable, least disruptive environment for the child. In assessing stability, one must decide what the "status quo" is for a given child. To this end Justice Stromberg-Stein in Mitchell, supra, made some useful comments and I propose to quote some passages from her Reasons. (My emphasis added). I have already referred to those passages. [127] Her Ladyship then went on to discuss stability and the status quo noting that the mother had been the primary caregiver since birth, and had had custody for four years, and that there was no evidence to indicate that the daughter had not been well looked after by the mother. She then stated, following the decision of Stromberg-Stein J., that the parties seeking to alter a child's status quo must present evidence to show that the status quo is unsatisfactory and not in the best interests of the child and should therefore be changed. She was unable to find such evidence, having read the transcripts. In the case at Bar, I am unable to find such evidence. [128] Before leaving the sub-para. (a) factors, I will refer to para. 87 of His Honour's Reasons. There he sets out factors which in his opinion favour the Appellants as custodial parents. He lists them as the fact the Child had been in their care for the majority of his life, that the Child had adjusted well into the new community they had relocated to, the fact the Child was removed from the conflict emanating from the Respondents and their relatives in Mackenzie, and that the Appellants had established themselves as excellent caregivers for the Child. In my view, these findings simply demonstrate, especially given the factors in para. 88, which His Honour believed were the only ones against the Appellants as custodians of the child, that in reaching the conclusion that Respondents should have custody, the Trial Judge made a palpable and overriding error, and in addition failed to apply the correct legal principles to those facts. [129] I would allow the appeal on this ground or issue. ISSUE NO. 3 The Trial Judge Erred In Failing To Show Proper Deference To The Decision Of The First Trial Judge [130] I will set out counsel's primary argument, taken from his written submission, as it basically covers the situation, and I have referred to much of it earlier in these Reasons. I have already observed that grounds for appeal, and the factors relevant to them, are often inter-related such that it is difficult to isolate a ground as well as the facts relevant to it. Hence, as Madam Justice Proudfoot said in A.H.P., these cases require an integrated assessment of all relevant factors and circumstances and an application of legal principles to the facts: In his Reasons for Judgment beginning at page 24 through page 27, the Trial Judge deals with the law as it applies to competing claims from the Parents and Grandparents. He does so, however, without regard to the fact that there had been a previous adjudication on this Issue. The cases relied on by the Trial Judge were not variation applications. They were cases where competing claims were being decided in the first instance. For example, at page 25, paragraph 71, the Court refers to the Reasons for Judgment of Newbury, J.A., in A.L. and J.L. v. D.K. and M.W., [2000] B.C.J. No. 1763 (Q.L.) (C.A.) in which she addresses the situation of parents "giving custody of their children to a relative intending that the situation not be permanent". The first point which needs to be made in relation to this issue is that leaving the child in care of the Grandparents for eight or ten years (depending on how one views it) is not temporary. There was no basis in the evidence, at least for the first eight years, for finding that the Parents intended that the arrangement be temporary, and they were content to have the Appellants [Grandparents] raise their Child. More to the point, however, where there has been a previous order, the Court's enquiries are not based upon a full and balanced consideration of all factors touching on the best interests of the Child. The starting point is with the order of [the First Trial Judge]. The focus of the enquiry is whether or not the new circumstances are sufficient to require a change. The Respondents did have the burden of proving "from ground zero" that the Child's best interest lay with them and the Trial Judge has failed to appreciate that fact. This is apparent from his repeated reference to the Respondents as "parents". The following passages, taken from His Honour's Reasons for Judgment, are relevant on this issue: (a) The parent is entitled to raise the child unless there is a clear reason why he or she cannot do so, or unless he or she clearly agrees otherwise. (page 26, paragraph 72(b)). (b) Parental claims must not be lightly set aside. (page 34, paragraph 89(b)). (c) However, a refusal to attempt any consultation undermines the position of the Applicants as [the Child's] Parents. (paqe 36, paragraph 92). (d) As [the Child's] Parents, their claim for custody must be given serious consideration and must not be set aside unless it is in [the Child's] best interests to do so. (page 36, paragraph 94(a)). (My emphasis added). [131] Counsel went on to say that repeated reference by the Trial Judge to the status of the Respondents as "parents" necessarily ignores the previous adjudication. The Appellants had been the defacto parents of the Child since birth. The Court had already given the Appellants the "legal rights and responsibilities of both parents" in 2003. The Reasons of the Trial Judge clearly indicate that he has not accepted the First Trial Judge's prior adjudication and has not accepted it as a starting point for the analysis. Finally, the focus of the Trial Judge's reasoning is on the "rights of the parents", not on the best interests of the Child. Counsel notes that in his Reasons for Judgment, at pp.22 and 23, the Trial Judge correctly quotes law from Gordon , specifically, the proposition that the new enquiry "is based on the findings of the Judge who made the previous order and evidence of the new circumstances". Counsel emphasizes that while the Learned Trial Judge correctly stated the principles to be applied, he has misinterpreted and misapplied them. I agree. His Honour did not correctly apply the principles, the test or standard, set out in Gordon. [132] Counsel then went on to submit that the passage referred to in Gordon by the Trial Judge under the topic (C) Summary, in para. 49, in particular that the enquiry is based on the findings of the judge who made the previous order, is really just a reference to the law of res judicata and reference was made to the decision of Boyd J. in S.M.J. v. R.H.C.W., [2003] B.C.J. No. 2950, particularly at para. 56. In that case, the general law of estoppel, as it applies in the case of previous litigation, is well set out, reference being had to the decision of the House of Lords in Arnod v. National Westminster Bank, [1991] 2 A.C. 93 (H.L.), wherein Lord Keith said at 104-105 that the plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [133] It would seem that counsel's statement as to the application of the law of res judicata is correct, at least in this case where the material change is relocation, and there is no question of a full enquiry being necessary. It is, at the least, a res judicata type of situation. The Trial Judge was bound to assume the correctness of the decision and findings of the First Trial Judge and to consider only the effect of the changed circumstances since the order was made. In any event, the result is the same. [134] Counsel completed his submissions on the third point of appeal, emphasizing again that the Trial Judge approached the issue of the best interests of the Child from the starting position that the rights of the natural parent, often referred to as blood rights or ties, should not be lightly set aside, a position which was maintained by the Trial Judge throughout his Reasons. Counsel also noted that the Trial Judge criticized the Appellants for discharging the legal rights and responsibilities which they had been given as sole guardians and custodians because in doing so they were "undermining the position of the Respondents as the Child's parents". Counsel ended his submission with the following: Given the prior adjudication on this issue, he was not legally entitled to do so. He was required to commence his analysis based on the finding of [the First Trial Judge] that there had been good reason to set aside the parental claim. (My emphasis added). I am satisfied that the Learned Trial Judge did not show the deference required of him to the decision and the findings of the First Trial Judge. He was bound to accept them as correct. He did not do so and in many respects. I am satisfied that the appeal should be granted on Issue or Ground No. 3. ISSUE NO. 4 The Learned Trial Judge Erred In Placing Undue Weight On The Blood Ties Between The Respondents And The Child, In Taking Into Account Irrelevant Considerations And In Failing To Take Into Account Other Relevant Considerations. [135] These issues or grounds demonstrate again what Justice Proudfoot said in A.H.P., that the factors to be considered, such as stability and security, the status quo, bonding with the custodial parent, and so on, are often inter-related and do not represent neat compartments which embody fixed criteria. In this regard this issue has been dealt with, at least in part, when the other issues were considered. A similar statement may be made about each of the issues or grounds of appeal. [136] I have already expressed my view that the appeal should be granted on the basis that the Trial Judge erred in placing undue weight, or critical and determining importance, on the blood ties between the Respondents and the Child, while failing to emphasize other more relevant factors in accordance with the Child's needs and circumstances, including the facts found by the First Trial Judge, and the stable and balanced care regime of the Grandparents for over ten years, and, as well, in considering irrelevant matters such as evidence and submissions pertaining to matters which were already determined, directly or inferentially, by the First Trial Judge, including the exemplary care and nurturing provided by the Grandparents and their credibility; that in doing so His Honour made manifest and reversible errors, and failed to determine what was in the best interests of the Child. [137] Counsel concluded on this point, saying that it was rare for a change of custody to be ordered after the Child has been in the care of one party for such a long and extended period of time; that it is generally only done when there are clear and compelling reasons for doing so. He emphasized that at trial, Counsel for the Respondents acknowledged that he had no case if he could not establish severe problems with the care given to the Child by the Grandmother, N.L.W. Counsel submitted up: Having attached too much weight to the fact that the Respondents are the natural parents of the Child, and having diminished the importance of stability for reasons which are legally irrelevant and unsound, and having criticized the Appellants for, essentially, acting in accordance with the [First Trial Judge's] order, the [Trial Judge] also criticized the Appellants for failing to consult on the decision to move and found that the motivations of the Respondents were a factor which favoured a change of custody. [138] He submitted that there was no legal duty to consult and that in any event, animosity between the parties was at such a level that it would have made any consultation very difficult. Finally, the motivation of the Respondents is not a factor which materially affects the well being of the Child. I am satisfied that the appeal should be granted on Issue or Ground No. 4. ISSUE NO. 5 The Trial Judge Erred In Finding That The Respondents Were More Likely To Honour The Letter And Spirit Of The Court Order. [139] This issue has already been dealt with, at least in part. The final reasons given by the Trial Judge for granting custody to the Respondents was that the Respondents were more likely to follow the terms of any Court order for access to the Appellants than the reverse, and the Respondents were more "likely to honour the letter and spirit of any Court order in this matter". Counsel submitted that there is no support for these conclusions on the evidence, and that they hardly could be grounds for changing custody, and I agree. He noted that the First Trial Judge had previously found that the hostility between the parties rested more on the Respondent Mother's shoulders, than on the Appellant Grandmother's shoulders; that if the Respondent Mother obtained custody the relationships between the parties "would be much more uglier than if the reverse occurred", and that the biological Parents had received more access than that to which they were entitled under the Court order. [140] Counsel said that the conclusion that the Appellants would be less likely to honour the letter of court orders was a reference to an admitted breach which occurred when the Appellants changed the specified weekend access so that the Child could spend more time with the Appellant Grandfather whose work shift had changed. Counsel said that while this was a breach of the letter of the order, it was consistent with past practise and with the spirit of the arrangement. He concluded that in order to conclude that the Appellants were more likely to breach court orders than the Respondent, the Court must necessarily have ignored the evidence of the Respondent, T.M.W., that following the decision of the First Trial Judge, she was trying to see the Child every day even though her access was limited and her conduct was in violation of the court order. He described her actions in the period after September 2003 as clearly directed to undermining both the letter and the spirit of the existing court order, referencing the January 13, and 14, 2005, transcript, p.62, lines 4-7. These conclusions of the Trial Judge are simply not supported by the evidence. [141] I am satisfied that a significant misapprehension of the evidence has been demonstrated, amounting to a material error, and that the appeal should be granted on this issue or ground. ISSUE NO. 6 The Trial Judge's Finding That It Is In The Best Interests Of The Child To Change Custody Is Patently Unreasonable. [142] Mr. Czepil submitted that the evidence is not in dispute that the Child has been raised by his Grandparents since birth, that the care and nurturing he received was beyond reproach, and that he thrived in that environment; all of which was found to be so by the First Trial Judge, as well as the Trial Judge to a substantial degree. The Trial Judge found that the Child benefited from the move to Williams Lake from Mackenzie. He found also that while the Child displayed love and affection for all the parties, the fact was that the Respondent's relatives living in Mackenzie seemed "intent on fuelling the hostility against N.L.W. and K.W."; that this contributed to the stress in the Child's life. [143] Counsel submitted, for the reasons previously discussed, that the Trial Judge's failure to find that a consideration of the health and emotional well being of the Child favoured the Appellants was patently unreasonable. He noted that the remaining factors listed in s.24(1), putting it most favourably to the Respondents, were neutral. Counsel noted that the only factor which might then have affected the disposition was that the move to Williams Lake made access more difficult. However, he submitted that the maximum contact rule was not absolute, and that the views of the Appellants as legal custodians and guardians were entitled to great respect. I would observe as well, as previously noted, that the excellent care and nurturing the Child received from his Grandparents over the years far outweighed or off set any loss or reduction in contact with the biological Parents, much of which could be alleviated by Court order. [144] Finally, Counsel noted again that the primary effect of the material change, the relocation, was on access. The Child was not otherwise affected. The problem was that as a result of the relocation, the Child had to travel ten to twelve hours by car every second weekend, and this made access difficult. The Appellants sought an accommodation with the Respondents to elevate the burden from the Child, but the Respondents were unbending. According to the Trial Judge's Reasons, the relocation in this case should not result in a change of custody absent other circumstances in the best interests of the Child which supported the change. This is a case where the Trial Judge elected to remove the Child from a longstanding and known, stable and secure environment where the Child is thriving in favour of the unknown; an unknown situation which the First Trial Judge found was suspect. In doing so the Trial Judge was clearly wrong. [145] I agree. For all of the reasons earlier discussed in concluding that custody should be granted to the biological Parents, the Trial Judge made a manifest error. His decision is clearly wrong. [146] Finally, I will repeat the following, which I said when giving my decision at Williams Lake on November 3, 2005: I must observe that the Child is ten years and eight months old as I understand at the present time. And that within two years or so he will be of an age that he will decide who he wants to live with and where he will live. And it is all the more that the parties should deal with the Child and each other civilly and respectfully and solely in his best interests. The Child has now had his eleventh birthday and his day of decision will soon be upon him. [147] The appeal is granted. Custody of the Child is restored to the Grandparents forthwith. The Grandparents will recover their costs of the appeal. "S.W. Hood, J." The Honourable Mr. Justice S.W. Hood