Admission of New Evidence on Appeal: The SCC Decision in Barendregt v. Grebliunas – Divorce

On May 20, 2022, the Supreme Court of Canada released its long-awaited reasons in Barendregt versus Grebliunasa landmark decision that considered when and how an appellate court can consider new evidence in family law cases.

The case in the Supreme Court of Canada concerned the appeal of a 9-day trial in British Columbia which focused on the mother’s request to move the children from Kelowna, British Columbia, where the family had lived. before the separation of the parents, at the mother’s home. home community of Telkwa, British Columbia. The father opposed the move.

The trial judge granted the mother’s request to relocate the children to Telkwa for two reasons. The trial judge’s primary concern was that if the mother remained in Kelowna, she would be continually abused by the father. A secondary concern was the condition of the father’s house in Kelowna, which required work to be habitable. Although the father said he would get financing to complete the work and buy out the mother’s share of the house, there was insufficient evidence in court regarding the father’s financing options.

The father appealed the trial judge’s decision to the British Columbia Court of Appeal. At the end of the appeal hearing, the father sought to introduce affidavit evidence that he had refinanced the house and that his parents had increased their personal line of credit, which was used for partially completed renovations. He then asked the Court of Appeal to consider this new information when deciding the appeal.

The Court of Appeal characterized the father’s additional evidence as “new” evidence because it did not exist at the time of the trial. In doing so, the tribunal applied a different test from that set out in Palmer v. The Queen, [1980] 1 SCR 759, which requires courts to apply the following four criteria when deciding whether to admit additional evidence to complete the appeal record:

  1. the evidence could not, through the exercise of reasonable care, have been available for trial;

  2. the evidence is relevant in that it relates to a decisive or potentially decisive issue;

  3. the evidence is credible in the sense that it is reasonably likely to be believed; and

  4. the evidence is such that, if believed, it could have affected the outcome of the trial.

The Court of Appeal went on to conclude that the Palmcriterion did not strictly govern the admission of new evidence on appeal and admitted the father’s testimony on the grounds that it undermined a primary basis of the trial decision and dismissed the assumption that the father might not be able to stay in Kelowna home. As one of the trial judge’s two primary considerations no longer applied, the Court held that relocation could no longer be justified. The court therefore concluded that the children’s best interests were best served by remaining in Kelowna with both parents.

In allowing the mother’s appeal from the Court of Appeal’s decision, the Supreme Court of Canada held that the Court of Appeal erred in failing to apply the Palm test to admit the father’s new testimony. The Palm The test has been designed to be flexible enough to address any particular concerns raised by “new” evidence and to ensure that the admission of additional evidence on appeal will be rare.

The majority of the Court, in reasons written by Justice Karakatsanis (Chief Justice Wagner and Justices Moldaver, Brown, Rowe, Martin, Kasirer and Jamal concurred) found that the father’s evidence did not satisfy the first prong of the Palmer test because he could have been available for trial with the exercise of due diligence. It was the father’s responsibility to take all reasonable steps to present his best case at trial and he failed to do so. To give the father another opportunity to address the deficiencies in his case or to remedy the deficiencies in his trial strategy using the trial judge’s reasons on appeal would be profoundly unfair and undermine the integrity of the justice system. The finality and certainty of the outcome of a trial should be encouraged, especially in a family law case that directly affects the life of a child.

The majority also concluded that even if the father’s new evidence could not have been available for trial, its use would nevertheless not be in the interests of justice because it was open to either other party to vary the trial order to take into account any material change in circumstances that may have arisen after the order was placed. In other words, the interest in achieving a just result could have been furthered by means other than an appeal. When considering an appeal of a parenting decision (including a decision to move), an appeals court should consider the appropriateness of a variation request and always consider any additional evidence through the lens of Palmtest.

Finally, the majority found that the Court of Appeal erred in interfering with the trial judge’s finding that the mother’s move to Telkwa was in the best interests of the children. Although the trial in this case took place before the new 2019 relocation framework Divorce law (entered into force on March 1, 2020), the majority nevertheless took the opportunity to debate these new provisions at length, considering that the amendments essentially codified the mobility framework defined in Gordon vs. Goertz, [1996] 2 SCR 27, “as refined over the last two decades”.

In a dissent, Justice Côté agreed that the test set out in Palm applied, but disagreeing on the application of the test to the facts of the appeal. Justice Côté held that the Court of Appeal’s ultimate finding on the admissibility of the father’s testimony was correct and should have resulted in the case being sent back to the trial judge for review. Côté J. is also of the opinion that the narrowing of the majority PalmThe flexibility of “exceptional cases” is unduly rigid and does not give an appellate court the tools it needs to fairly determine the best interests of the child in a particular case. In this case, the new evidence adduced by the father relates to a critical aspect of the trial judge’s reasoning. According to Judge Côté, “finality, while important, should not tie the hands of a reviewing court” so as to prevent it from crafting a remedy that would promote the best interests of the child.

Justice Côté went on to say that she would have avoided discussing the new provisions for relocating the Divorce law because they were not really committed to the facts of the case before the Court.

In this timely Supreme Court decision, the Family Law Bar received long-awaited clarification on the continued applicability of the Palm criterion when considering the admission of new evidence on appeal. We also learned that there continues to be a very tight standard of review in parenting cases, including in mobility cases.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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