## Facts

- Kimberly Van de Perre, a single white Canadian living in Vancouver, and Theodore (“Blue”) Edwards, an African-American professional basketball player married to Valerie Edwards, had a relationship lasting about 18 months.
- Their son, Elijah, was born in June 1997 and is of mixed racial heritage.
- When Elijah was about three months old, Van de Perre commenced proceedings seeking custody and child support.
- At trial, the parties presented little evidence or argument about racial identity, racial socialization, or community race relations.
- The trial judge found it important that Elijah be familiar with both sides of his heritage but concluded Van de Perre would provide the more stable and loving home.
- The trial court granted Van de Perre sole custody, with defined access to Edwards.

## Issues

1. What is the proper standard of appellate review for custody and access orders, and when may an appellate court intervene?
2. How, and to what extent, may race and culture be considered in determining a mixed-race child’s best interests when race is not an enumerated statutory factor?
3. Whether it was procedurally proper for the appellate court to add the father’s spouse as a party and joint custodial applicant during the appeal.

## Decision

- The Supreme Court of Canada allowed the appeal and restored the trial custody order granting Van de Perre sole custody with access to Edwards.
- The Court held that custody and access determinations are discretionary and highly fact-based; appellate intervention is limited to legal error or material error in appreciating the evidence.
- The Court concluded the Court of Appeal improperly reweighed the record and substituted its own view of Elijah’s best interests without identifying a material trial-level error.
- The Court held race may be relevant but, on this record, did not justify overturning the trial decision; the Court of Appeal improperly elevated race beyond the evidentiary foundation.
- The Court criticized the mid-appeal addition of Valerie Edwards as a party and joint custodial applicant as inconsistent with proper appellate function and as contributing to an improper re-trial on appeal.

## Legal Principles

- Custody/access appeals require deference: an appellate court may intervene only for an error of law or a material error in the appreciation of facts.
- The best interests of the child is the controlling standard; the weighting of relevant factors is for the trial judge, constrained by the evidence.
- Race and culture can be considered as contextual factors, but they are not presumptively determinative and must be grounded in evidence specific to the child and communities involved.
- Appellate procedure should not be used to introduce new custodial claimants in a way that effectively bypasses trial-level fact-finding.

## Conclusion

The Supreme Court reinstated the trial custody order, holding that appellate courts must not redo custody cases absent legal or material factual error and that race, while potentially relevant to best interests, cannot be treated as determinative without supporting evidence.


Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 (Can. 2001)