H. (D.) v. M. (H.), 1999 CanLII 20555 (SCC), [1999] 1 SCR 761

Supreme Court of Canada

H. (D.) v. M. (H.), [1999] 1 S.C.R. 761

N.H. and D.H. Appellants

v.

H.M., M.H. and Director of Child, Family and Community Services Respondents

Indexed as: H. (D.) v. M. (H.)

File No.: 26555.

1999: May 3.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

motion for a rehearing of an appeal

Practice ‑‑ Supreme Court of Canada ‑‑ Rehearing ‑‑ Motion for rehearing brought on ground that appellants failed to serve application for leave to appeal and notice of appeal on Court of Appeal intervener -- Application for leave to be served on “parties in the courts below” -- “Party” as defined in British Columbia Court of Appeal Rules not including interveners -- Applicant aware prior to original hearing in Supreme Court that intervener had not been served -- No potential failure of justice at original hearing shown -- Motion for rehearing dismissed -- Rules of the Supreme Court of Canada, SOR/83-74, Rule 23 -- Court of Appeal Rules, B.C. Reg. 303/82, Rule 1.

Cases Cited

Referred to: Sawridge Indian Band v. Canada, [1997] S.C.C.A. No. 430 (QL); Greater Montreal Protestant School Board v. Quebec (Attorney General), 1989 76 (SCC), [1989] 2 S.C.R. 167.

Statutes and Regulations Cited

Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, s. 4(2).

Court of Appeal Rules, B.C. Reg. 303/82, Rules 1, 4(1).

Rules of the Supreme Court of Canada, SOR/83-74, Rules 1, 18, 23.

Supreme Court Act, R.S.C., 1985, c. S-26, s. 60.

MOTION for a rehearing of an appeal, 1999 710 (SCC), [1999] 1 S.C.R. 328. Motion dismissed.

Written submissions by John B. Harvie and Amy R. Gough Farnworth, for the applicant H.M.

Written submissions by Julius H. Grey, for N.H. and D.H., respondents on the motion.

The following is the order delivered by

//The Court//

1The Court -- This is a custody case. The applicant Hubert M. applies for a rehearing of this appeal, which was heard by the Court on February 17, 1999. At that time the Court unanimously allowed the appeal, set aside the decision of the British Columbia Court of Appeal ((1998), 1998 4431 (BC CA), 156 D.L.R. (4th) 548), and restored the trial judgment of the Supreme Court of British Columbia, delivered September 26, 1997 ([1997]¸ B.C.J. No. 2144 (QL)). The result was to grant permanent custody of the child, Ishmael Tavarres H., the applicant’s grandson, to his other grandparents, Nancy H. and Duncan H., who are the respondents in this motion for rehearing, with continuing rights of access to the mother and to the applicant. The applicant seeks a rehearing on the basis that the respondents failed to serve the Sagkeeng First Nation, an intervener in the British Columbia Court of Appeal, with their application for leave to appeal to this Court and the notice of appeal herein. Ishmael is a member of the Swan Lake First Nation and is not a member of the Sagkeeng First Nation.

2The facts of this case are as follows. Ishmael was born March 8, 1995 and is four years old. The putative father is an African-American who lives in the United States, where the adoptive grandparents, the respondents, also live. The mother, Melissa, is an aboriginal Canadian. At birth, she was a member of the Swan Lake First Nation of Manitoba. She and her sister passed through a long list of foster homes in their infancy and were given up for adoption by the applicant and were adopted by the respondents when they were four and six years old respectively. After Melissa became pregnant with Ishmael, she resided with the respondents for some time both before and after his birth. Shortly following the birth, Melissa being unable or unwilling to look after Ishmael, the respondents took over his care. Ishmael was subsequently taken by his mother to British Columbia where, eventually, he came into the care of the British Columbia Ministry of Children and Families (as it now is).

3The trial judge found that both the applicant and the respondents were sincere and loving grandparents and each were capable of offering a good home to Ishmael. In his reasons, he gave considerable emphasis to the aboriginal heritage of Ishmael’s mother’s side. He said that “aboriginal heritage and the ability of his biological grandfather to preserve and enhance it are important considerations” (para. 46), and that the claims of the applicant to custody were soundly based on “ties of blood, his obvious love and affection for Ishmael, his aboriginal heritage, [and] his demonstrated ability to provide a home and care for his family” (para. 49). At the same time, the trial judge extensively reviewed the other circumstances of the parties, including the stability of the respective homes, and concluded that “[t]he submission that Ishmael’s aboriginal heritage is virtually a determining factor here, oversimplifies a very complex case” (para. 47). The trial judge did not agree that an order granting custody of Ishmael to the respondents would uproot him from his culture. Ishmael is African-American on his putative father’s side, aboriginal Canadian on his mother’s side, and has lived a significant part of his life with his adoptive grandparents, who are neither. As the trial judge said, “[t]his is not a case of taking an aboriginal child and placing him with a non-aboriginal family in complete disregard for his culture and heritage. The fact is that Melissa is the [adopted] daughter of [the respondents] and Ishmael is their grandson” (para. 46).

4The trial judgment was reversed by the Court of Appeal, which put emphasis on the apparent stability at the time of the appeal of the relationship between the applicant and J.S., and the fact Ishmael appeared “well integrated into the family unit of [the applicant], J.S., and their daughter, Sharleen. . . . J.S. is proving to be a resource of stability to [the applicant] and the family and is able, together with [the applicant], to provide a good home milieu for Ishmael. . . . As well, Ishmael has in his present home a young sibling, the child Sharleen, to whom he relates well” (pp. 551 and 554-55). We were advised at the hearing of the appeal that the applicant no longer lives with J.S. and Sharleen, but has returned to live in Manitoba.

5Both the trial judge and the Court of Appeal referred to the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, which provides a statutory direction to public authorities in British Columbia to have careful regard to the cultural identity of aboriginal children. In particular, s. 4(2) provides that: “If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests.” The Court of Appeal noted that “[a]s a strict matter of law, the Child, Family and Community Service Act is not applicable to the proceedings” (p. 555). That court nevertheless concluded that the trial judge had “underemphasized ties of blood and culture” (p. 554). This Court, on appeal, disagreed. We concluded that in fact the trial judge had given careful attention to the aboriginal ancestry of Ishmael, together with all the other factors relevant to Ishmael’s best interest, and that there was no error in his decision, which was reached after five days of evidence and two weeks of reflection, that justified its reversal by the Court of Appeal. The importance of the findings of the trial judge in custody cases cannot be forgotten. They should not be lightly set aside by appellate courts.

6The question that now arises for decision is whether this appeal should be reheard because the respondents did not serve on the Sagkeeng First Nation a copy of the application for leave to appeal and the notice of appeal herein. Rule 23 of the Rules of the Supreme Court of Canada requires service of the application for leave “on the parties in the courts below”. The Sagkeeng First Nation did not participate at the trial level but was granted limited intervener status by the British Columbia Court of Appeal. Such interveners do not thereby acquire the rights of a party in this Court: Sawridge Indian Band v. Canada, [1997] S.C.C.A. No. 430 (QL). Rule 1 of the Supreme Court of Canada Rules defines “party” to include interveners “unless the context does not so permit”. Rule 23 clearly refers to those who have “party” status “in the courts below”. “Party” is defined in the British Columbia Court of Appeal Rules, B.C. Reg. 303/82, Rule 1, to mean “the appellant and each respondent who has filed a notice of appearance under rule 4(1)”. The Sagkeeng First Nation did not bring itself within that definition. While it is good practice for parties seeking leave to appeal to this Court to serve interveners as well as parties in the courts below, the technical objection raised by the applicant is met by the technical answer of Rule 4(1) of the British Columbia Court of Appeal Rules. Equally, the respondents were not required by s. 60 of the Supreme Court Act, R.S.C., 1985, c. S-26, to serve the Notice of Appeal on the Sagkeeng First Nation unless and until an order granting intervention status was made by a judge of this Court after application under Supreme Court Rule 18. This procedure was implemented by a change in the Rules to which the attention of the profession was drawn by the Court’s Notice to the Profession dated January 16, 1984. No such order was made in favour of the Sagkeeng First Nation. More substantively, however, we do not think it fair for the applicant, who lives on the Sagkeeng First Nation Reserve, who received all proper notices and who fully participated in the proceedings in this Court, who knew of the absence of the Sagkeeng First Nation and who could if he had wished have provided notification on his own to the Sagkeeng First Nation, to now complain of the respondents’ alleged oversight. The applicant’s argument that the original hearing of the appeal was improperly constituted is rejected.

7The Court would, nevertheless, consider the grant of a rehearing if this were one of those truly exceptional cases where the applicant could show a potential failure of justice at the original hearing. No such potential has been identified. Both the applicant and the mother were ably represented by counsel at the hearing of February 17, 1999. At that time, counsel addressed the relevant arguments which the Sagkeeng First Nation now wishes to reargue, except for its demand for an up-dated psychological assessment of Ishmael, which the applicant himself did not request at the time of the hearing of February 17, 1999. Interveners address the general legal issues raised by an appeal. It is not their role to seek to expand the record of adjudicative facts beyond that which satisfies the immediate parties.

8In Greater Montreal Protestant School Board v. Quebec (Attorney General), 1989 76 (SCC), [1989] 2 S.C.R. 167, the Court said, in terms equally applicable to the present application, at p. 168:

In essence the applicants are saying that, when one considers all of the material before the Court, and more particularly certain items brought to its attention at the time of the application, one cannot but make ... findings in a manner favourable to their case. Having found adversely to the applicants, the Court, argue [the] applicants, must have overlooked this material and therefore should rehear the case.

That is an argument that any unsuccessful party could make seeking a rehearing. There is nothing here before us supportive of the fact that the Court misled itself or was misled as regards what was the record before it, the nature of the issues, or the questions to be addressed.

9We conclude that no rehearing is justified. The motion for a rehearing is therefore dismissed with costs.