A recent family law decision from the Supreme Court of Canada has shed light on two somewhat common family law areas. The first is the introduction of new evidence at appeal (of course, this is not a topic relevant only to family law) as well as the proper way for a parent to seek a change to a parenting order, more specifically, whether a variation or an appeal of that order is more appropriate. In this article, we will review the case and share the key outcomes of the court’s decision.
Separation leads to parents living far apart
The matter involved the father and mother of two children who first met in 2011. They lived together in Kelowna, British Columbia, from 2012 until their relationship ended in 2018. While in Kelowna, they had purchased a home which they planned to renovate. However, they didn’t get to finish the plans for their home. Just before their separation, the father assaulted the mother. This led to her moving to Telkwa, British Columbia, where her parents lived. The children stayed in Kelowna, and the mother had originally planned to travel there every other week in order to follow a parenting arrangement they had in which they would alternate parenting time every other week. Ultimately, the mother didn’t even make the 10+ hour drive between the two towns and eventually applied to the courts for an order to relocate the children to Telkwa. Failing that, she said she would move back to Kelowna, though the father was not willing to do the same.
During the original trial, the judge ruled that the children should be made to relocate. The trial judge focused on two key aspects. The first was the acrimonious relationship between the parents and the impact it had on the children and the father’s financial situation and what the court described as his inability to make Kelowna home habitable.
Father seeks to provide evidence to support his position
The father appealed the trial judge’s decision, stating that he had evidence which would show his financial situation was not what was reflected in the decision and that the home in Kelowna was suitable for the children to live in. While the evidence existed before the trial, the Court of Appeal characterized it as “new” because the court had not yet heard it.
A 1979 decision (“Palmer”) from the Supreme Court of Canada tested whether new evidence can be admitted at appeal. We’ll get to that test when we look at the Supreme Court’s decision. For now, it will be sufficient to explain that the Court of Appeal decided not to use the Palmer test, and instead allowed the evidence to be introduced because it, “undermined a primary underpinning of the trial decision and the assumptions that the father might not be able to remain in the Kelowna home had been displaced.” The Court of Appeal decided that the best thing to do would be to ask the mother to move to Kelowna so that the children could have access to both parents.
Supreme Court says Palmer test should have been used
In its analysis, the Supreme Court wasted little time in stating that the Palmer test should have been used to determine whether the father’s evidence should be allowed on appeal. The Palmer test requires new evidence to satisfy three criteria in order to be admitted. They are:
- Whether the evidence could have been introduced at trial through the due diligence of the person looking to introduce it
- Whether the evidence is relevant in a decisive or potentially decisive issue
- Whether the evidence is credible and capable of belief
- Whether the evidence, if believed, would have affected the result at trial
In this case, the court stated that the father’s evidence was available to him before the original trial. Therefore, it failed to satisfy the first requirement of the Palmer criteria. Therefore, it should not have been allowed, and the children should not have been ordered to live in Kelowna.
The court then went on to write about the importance of finality in litigation matters, especially those relating to family law issues involving children. By employing strict guidance on when new evidence can be admitted, the people involved in litigation can take some solace in knowing that only appeals based on the law (or those in fact that satisfy the Palmer criteria) will lead to new decisions.
The court then turned to what is determined to be a more appropriate way for the father to pursue his appeal. Instead of appealing the trial decision, the court wrote that he should have sought a variation of the appeal. Courts can allow variations to orders by following what is known as the Gordon test, which asks whether the new evidence demonstrates a material change in the child’s circumstances and secondly, whether the requested variation reflects the child’s best interests.
HMC Lawyers can help you determine the best path forward for your family law issue
At HMC Lawyers we have a dedicated family law team that understands the nuances of family law. We also appreciate the emotional toll that a separation or divorce can have on a family and work with our clients to find solutions in their best interests and children when they are involved. Our experienced team can assist you if you have any questions or concerns regarding family law. Please do not hesitate to contact us online or at 1-800-480-3534.