THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 37 Date: 20040315 Between: Docket: 783 [R.J.E.] (Petitioner) Appellant [H.M.E.] (Respondent) Respondent Coram: Tallis, Cameron Lane JJ.A. Counsel: James A. Johnson for the Appellant Lyle O. Phillips for the Respondent Appeal: From: FLD 23 of 1999, J.C. of Moose Jaw Heard: March 15, 2004 Disposition: Dismissed (orally) Written Reasons: March 16, 2004 By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane TALLIS J.A. (orally) [1] We do not need to hear from counsel for the respondent. mentioned during the opening of this appeal that members of the panel had followed the usual practice of carefully reviewing the trial record and written arguments before this hearing. [2] We are all of the view that there is no basis to interfere with the decision of Mr. Justice Smith. As his extensive reasons for decision disclose he addressed the matter thoroughly. [3] This was a difficult case in which the trial judge was required to carefully address the competing claims for custody, but mindful of the “best interests of the child”. Throughout the trial and in his reasons the learned trial judge focussed on this predominant issue. And in our view he addressed it as required by law. [4] We cannot say that the learned trial judge erred in any material respect when weighing and considering the evidence. Since the parties were unable to resolve the issues to their mutual satisfaction, it fell to the trial judge to make “hard choice”. He had the distinct advantage, that we do not have, of seeing and hearing the parties and being able to form an impression of them. [5] We dismiss this appeal with costs on double Column 5. [6] We cannot part from this appeal without noting the acrimonious history of litigation concerning custody and access. The welfare of [B.E.] would be better served by spirit of compromise. The time, energy and expenses incurred in protracted litigation could be put to better use in advancing the welfare of this young child.
Fulltext of judgment follows:[1] We do not need to hear from counsel for the respondent. I mentioned during the opening of this appeal that members of the panel had followed the usual practice of carefully reviewing the trial record and written arguments before this hearing.[2] We are all of the view that there is no basis to interfere with the decision of Mr. Justice Smith. As his extensive reasons for decision disclose he addressed the matter thoroughly. [3] This was a difficult case in which the trial judge was required to carefully address the competing claims for custody, but mindful of the 'best interests of the child'. Throughout the trial and in his reasons the learned trial judge focussed on this predominant issue. And in our view he addressed it as required by law. [4] We cannot say that the learned trial judge erred in any material respect when weighing and considering the evidence. Since the parties were unable to resolve the issues to their mutual satisfaction, it fell to the trial judge to make a 'hard choice'. He had the distinct advantage, that we do not have, of seeing and hearing the parties and being able to form an impression of them. [5] We dismiss this appeal with costs on double Column 5. [6] We cannot part from this appeal without noting the acrimonious history of litigation concerning custody and access. The welfare of [B.E.] would be better served by a spirit of compromise. The time, energy and expenses incurred in protracted litigation could be put to better use in advancing the welfare of this young child.