Introducing New Evidence When Appealing Family Law Decisions


Most people experience a great deal of fluidity in their lives. Whether change occurs because of work, school, or relationships, most people can expect for their circumstances to experience change from year to year. Many of the changes people experience may not have any impact on other areas of their lives, but for parents who are divorced or separated, changes may impact things such as child support or parenting time arrangements.

Because of these expected changes, parents can apply to vary court-issued orders related to parenting time or support. A parent who does not think the court made a proper decision may decide to appeal that decision. In situations where one of the parties wants to introduce new or unheard evidence during the appeal that may lead to a different order, the correct process has not always been clear for parents in family law disputes. The Supreme Court of Canada recently issued a decision which provides clarity on whether courts should allow appeals that want to introduce new evidence, or whether a variance is the proper path to follow.

Parents’ relationship ends after a domestic assault

The mother and father involved in the Supreme Court decision met in Northern British Columbia in 2011. They moved to Kelowna the following year and soon got married, bought a house, and had two children. The home was a fixer-upper and required a significant amount of money and work to make it suitable for living.

The relationship ended in 2018 after the father assaulted the mother. The mother moved to the community of Telkwa with her parents thereafter, which is about a 10-hour drive from Kelowna. The parents reached an arrangement where the children would split time between the parents, with the mother planning to return to Kelowna every other week. However, she did not return to Kelowna and instead asked a trial judge to allow the children to move to Telkwa with her. If the father did not want to move, she stated that in the alternative, she would be willing to move to Kelowna.

Father fails to bring evidence of suitable home for children to trial

The trial judge determined that the children should move to Telkwa with their mother. There were two elements that led the judge to this decision. The first was that the parents did not have a healthy relationship with one another and this had negative implications on the children. The second was that the father to that point had not been able to make the home in Kelowna habitable for the children, in part because of his financial situation.

The father appealed this decision, stating that he had evidence that addressed the concerns the trial judge had over his ability to provide a suitable home for the children. The Court of Appeal held that this evidence should be considered “new.” The new evidence undermined one of the primary reasons the trial judge arrived at their decision. Since the father had addressed the concerns around an unsuitable home for the children by way of the new evidence, the trial court decision was overturned. The Court of Appeal ruled that it would be in the best interests of the children to stay in Kelowna, where the father lived, and the mother was willing to move back.

Supreme Court finds Court of Appeal should have used established test

The Supreme Court was critical of the Court of Appeal’s choice to alter the trial judge’s decision. Instead, the Court of Appeal should have used the prescribed test that has been established at law to determine if the evidence could be admitted on appeal. The Supreme Court found that the Court of Appeal was wrong to apply a different test and arrive at a different result than the correct test would have arrived at.

The correct test, laid out in R v Palmer, has four elements:

  1. The evidence should generally not be admit­ted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases…
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  3. The evidence must be credible in the sense that it is reasonably capable of belief, and
  4. It must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result.

In this case, the father’s evidence failed to meet the first element because the additional financial information he had provided was available before the trial. The court did not have to consider the other steps of the test as a result.

In overturning the Court of Appeal’s decision, the court wrote about the importance of finality, especially in family law situations, stating,

“Children should be afforded the comfort of knowing, with some degree of certainty, where they will live and with whom. Certainty in a trial outcome can ensure an end to a period of immense turmoil, strife, and costs; parties should do what they can to promote it.”

The court added that only in rare instances should an absence of due diligence be outweighed by the interests of justice and that this case did not meet those standards.

Johnson Miller Family Lawyers can help you with your parenting time issues

This case underscores the importance of working with a skilled lawyer to make sure that all of the information that supports your case is brought to the court’s attention at the right time. At Johnson Miller Family Lawyers we recognize that working through disputes concerning parenting time can be one of the most stressful aspects of separation or divorce. With over 25 years of experience, our family lawyers can help ease this stress while working compassionately and efficiently towards a solution that has your family’s best interests in mind. We offer services across all areas of family law, including child supportspousal supportmediation, and more. We proudly serve clients in Windsor, Essex County, and throughout the region. Please give us a call at 519-973-1500 or reach out to us online to schedule an initial consultation today.


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