Pratap v. Pratap

2005 BCCA 71 Pratap v. Pratap

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pratap v. Pratap, 2005 BCCA 71 Date: 20050211 Docket: CA31072 Between: Mathew James Pratap Appellant (Plaintiff) And Pamela Joy Tamara Pratap Respondent (Defendant) Before: The Honourable Mr. Justice Smith (In Chambers) Appellant Appearing on own behalf M. Rozenberg Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 4 February 2005 Place and Date of Judgment: Vancouver, British Columbia 11 February 2005 Reasons for Judgment of the Honourable Mr. Justice Smith: [1] On 27 June 2003, following a ten-day trial, Mr. Justice Shaw ordered that the parties be divorced and granted sole custody of their two children, then aged three and eight, to the respondent wife. Mr. Pratap brought an appeal from the custody order on 25 July 2003. On 23 September 2003 he filed the Appeal Record and copies of the transcript. On 22 October 2003 he filed the Appeal Book. There the matter stood until 21 July 2004, when the appeal was placed on the inactive list pursuant to s. 25(1) of the Court of Appeal Act. On 18 January 2005, Mr. Pratap filed the notice of motion that led to this hearing, seeking orders that 1. The appeal be removed from the inactive list, 2. The date for filing the Factum of the Appellant be extended to March 31, 2005, 3. The date for filing the Book of Authorities be extended to March 31, 2005, 4. The time

limit for taking the next step required by the Court of Appeal Act or Court of Appeal Rules must commence to run as of March 31, 2005, 5. The certificate of readiness be filed within 180 days of the date of this order, failing which the appeal must be returned to the inactive list. [2] So far as is relevant on this application, s. 25 of the Court of Appeal Act provides 25 (1) If a certificate of readiness is not filed in accordance with the rules within one year after the filing of the applicable notice of appeal or notice of application for leave to appeal, the registrar must (a) place the appeal or application for leave to appeal on the inactive appeal list maintained in the registry (2) An appeal or application for leave to appeal referred to in subsection (1) must be removed from the inactive appeal list when a justice grants leave to the appellant or the applicant to proceed with the appeal or application for leave to appeal. [3] The overriding issue on an application for leave to proceed with an appeal brought under s. 25(2) of the Act is whether the granting of leave is in the interests of justice. The factors that will be considered include the extent of delay, the explanation for the delay, the existence of any prejudice arising from the delay, and the likelihood of success on appeal: see Deline v. Kidd, 2003 BCCA 170 ¶11. [4] All of these enumerated factors were

canvassed at the hearing of this application, but the primary focus was on the merits of the appeal. [5] Mr. Pratap, who filed a draft but not yet complete factum in support of his application, presented a comprehensive, detailed, and well-organized submission on the points on which he contends the trial judge erred. While he referred to a number of matters, the gist of his appeal is an allegation that the trial judge erred in basing his award of sole custody of the children to Mrs. Pratap on a finding that Mr. Pratap has a "controlling personality". Mr. Pratap says the trial judge misapprehended the evidence on this question. He canvassed thoroughly a number of items of evidence that he contends demonstrate this error. In his submission, the trial judge allowed himself to be influenced by his view of Mr. Pratap's personality to the extent that he failed to give proper regard to the best interests of the children. In particular, he submits that there was a great deal of evidence to which the trial judge did not refer that ought to have led him to the conclusion that the best interests of the children lay with him having sole custody or, at least, sharing joint custody with Mrs. Pratap. [6] Mr. Pratap relies particularly on the expert opinion report of Dr. Monica Angus, a clinical psychologist, prepared pursuant to s. 15 of the Family Relations Act, in which she recommended him

as the preferred custodial parent. In addition to her written report, Dr. Angus testified at trial at considerable length. The trial judge noted that Dr. Angus had good and bad things to say about both parties capabilities as parents. However, he disagreed with her conclusion that Mr. Pratap was the preferable custodial parent, noting that his disagreement arose from his opportunity to assess the testimony of the witnesses and to see them being cross-examined. He concluded, [32] When I consider all the evidence, I am of the view that the status quo should prevail in the sense that primary care of the children should remain with Mrs. Pratap with generous access to Mr. Pratap. However, I add that Mrs. Pratap is not to move the principal residence of the children out of the Lower Mainland area without a further court order or written consent of Mr. Pratap. [7] It is true that the trial judge concluded that Mr. Pratap is "of a controlling nature" in respect of his relationship with Mrs. Pratap. Mr. Pratap feels genuinely aggrieved by this finding. However, his grievance has led him to elevate this finding to a level of importance in his mind that it did not reach in the mind of the trial judge. It is clear from his reasons for judgment that his opinion of Mr. Pratap's personality was only one of the circumstances considered by the trial judge in reaching his conclusion that sole

custody should be granted to the wife. Notably, he observed that during the period from the separation of the parties in January 2001 until the trial in June 2003, Mrs. Pratap had custody of the children and that she "has attended to their needs and provided them with love, emotional warmth and stimulation for their intellectual growth". He commented that the elder child was very worried about the possibility that she might have to leave her mother. These remarks illustrate the trial judge's view that the conclusive factor was that it would not be in the best interests of the children to disrupt their lives by removing them from the situation in which they had been comfortably settled for the past two and one-half years. [8] Mr. Pratap faces a very high standard of review in this appeal, which is described by Bastarache J. in Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60 ¶ 10-16. Although the trial judge is required to consider the relevant factors in light of the evidence, he or she is not obligated to discuss every piece of evidence when explaining the reasons for awarding custody (¶ 10). The power of appellate review is very narrow and does not allow an appellate court to substitute its view of the correct conclusion for that of the trial judge in the absence of some material error (¶ 12). Children should not be left unsure of their home for lengthy periods of

time and finality is a significant consideration (¶ 13). Moreover, [13] an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. [9] I have considered Mr. Pratap's submissions and the reasons for judgment carefully and I can see no indication that the trial judge made any error in principle, that he failed to consider relevant factors, that he failed to consider or misapprehended material evidence, or that he failed to properly weigh the evidence. Given the very high degree of deference afforded to the decisions of trial judges in custody cases, it is my view that this appeal has no hope of success. [10] Turning to the other relevant factors on this application, I note that Mr. Pratap has explained that the delay is a result of his inability to afford counsel and to take time from his job to prepare and file the factum. That is not an unreasonable explanation. However, the length of the delay is a serious concern because of the importance of finality in cases involving the custody of young children. These children have now been living with their mother in what is acknowledged to be a stable and loving relationship

for more than four years. To leave them in a continuing state of uncertainty while this appeal proceeds would not be in their best interests. Moreover, the preservation of the status quo has become an even more compelling circumstance than it was at the time of the judgment under appeal. Further, Mrs. Pratap has a debilitating medical condition which is exacerbated by the stress of this litigation. As well, although counsel appeared for her on this application because she was hospitalized and unable to attend, she has no funds to employ counsel to conduct the appeal on her behalf. This will add to her stress if the appeal should proceed. Thus, significant prejudice to Mrs. Pratap and to the children will result from the delay if this application is granted. [11] It must be acknowledged that Mr. Pratap has incurred significant expense and devoted considerable effort to bringing the appeal to its present state. However, it is not in his interests to continue to devote time, expense and emotional investment to an appeal that, in my view, is bound to fail. [12] In the result, I have concluded that it is not in the interests of justice to allow this appeal to proceed. Accordingly, the application is dismissed. "The Honourable Mr. Justice Smith"