A party who believes a court made an incorrect decision concerning an issue in their case may wish to appeal that decision. They may also want to introduce new evidence on the appeal to establish facts that would bolster their case or that may impact the correctness of the original ruling. The admission of new evidence on appeal is discretionary but may be appropriate if specific criteria are met. In a recent decision, the Supreme Court of Canada outlined how new evidence relevant to the child’s best interests should be handled on appeal.

The Criteria for Admitting New Evidence

Rule 38(29) of the Family Law Rules allows a court to admit fresh evidence on an appeal under section 134(4)(b) of the Courts of Justice Act. Admitting new evidence is at the court’s discretion with reference to a list of factors set out by the Supreme Court of Canada in R. v. Palmer. These criteria outline when a party may adduce new evidence on appeal:

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
  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;
  4. The evidence 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.

Some jurisprudence has held in family law cases where there are issues that involve children, the criteria are relaxed so that courts can discharge their obligation to consider the best interests of the children. In A.P. v. L.K., the Court explained that flexibility in the Palmer test was warranted in cases involving children so that the Court can have current information about the children and because the welfare of children is at stake. 

An Appeal Is Not a Retrial

In Barendregt v. Grebliunas, the Supreme Court of Canada revisited the Palmer test and clarified the approach to admitting new evidence. The Court began by explaining that an appeal is not a retrial and that appellate courts have a limited license to review evidence afresh. It is important that appeal courts are limited in their review, otherwise, the finality and predictability that parties depend on are compromised. The justices highlighted that the Palmer criteria apply whenever a party wishes to add evidence on appeal for the purpose of reviewing a lower court decision. The test is fact-specific and expresses an overall concern for the interests of justice while accepting that the admission of additional evidence on appeal will be rare because, as discussed in Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), the issues between the parties should “narrow rather than expand as [a] case proceeds up the appellate ladder”. The test ensures finality and order in the justice system by excluding evidence that could have been introduced if the party exercised due diligence. 

Party Must Act With Due Diligence to Admit Evidence 

Barendregt v. Grebliunas involved an appeal from the British Columbia Court of Appeal, in which the B.C. Court modified the Palmer test and admitted evidence on appeal. This was an error, as it allowed the party to fix deficiencies in his trial evidence and gave rise to unfairness. The Supreme Court discussed the distinction between “new” and “fresh” evidence, explaining that “new” evidence pertains to facts that occurred after trial, and “fresh” evidence involves facts that occurred before trial but for some reason could not be put before the Court. This gave rise to questions about how the Palmer due diligence test could be applied to new evidence if it was not in existence at the time of the trial. This led the British Columbia Court of Appeal to depart from Palmer and apply a different test to new evidence, which dispensed with the due diligence requirement. For the Supreme Court, this was an error, as Palmer should be used to assess both types of evidence. 

The Court explained that using a new test failed to strike the balance between finality and order and the interest in a just result. The due diligence inquiry looks at whether the party could have rendered the evidence at trial, so the focus is on the conduct of the party and not on the evidence itself. When a party seeks to add evidence on appeal, the Court must determine why it was not available at trial. Accordingly, for the purposes of the Palmer test, it is not necessary to distinguish between “new” and “fresh” evidence. 

Finality in Litigation Especially Important in Cases Involving Best Interests of the Child 

The Supreme Court also considered whether the Palmer test is applied more flexibly in cases involving the child’s best interests. Prior cases had explained that such cases may require a more flexible application of Palmer’s fourth criterion, as the best interests analysis widens the scope of evidence that might affect the outcome of a specific case.

For the Court, in cases involving children, there is a premium on certainty and the need for up-to-date and accurate information, so evidence that may not meet the due diligence requirement can be admitted only in exceptional circumstances. 

An appeal brings uncertainty which can leave the determination of a child’s arrangements up in the air, adding stress. Moreover, protracted litigation strains the parties’ resources, particularly if they end up relitigating facts on an appeal. One concern is that prolonging the adversarial process hinders the parties from restructuring their relationship and cooperating for their children. Therefore, certainty after a trial can bring an end to turmoil and should be promoted.

Consequently, evidence that does not satisfy the due diligence criterion should not generally be admitted, even on appeals concerning the child’s best interests. Only in exceptional circumstances should the evidence be admitted. However, in these cases, the other Palmer criteria continue to apply and must be met.  

Courts Have the Discretion to Allow New Evidence on an Appeal

An appeal does not provide an opportunity for the court to review evidence afresh. Consequently, while courts have some discretion to permit new evidence in an appeal, this involves balancing the need for finality, order, and a just outcome. The Palmer test preserves this balance by requiring the party seeking to introduce the new evidence to exercise due diligence and meet other criteria. Even in cases where the best interests of the child are an issue, new evidence that fails to meet the due diligence requirement should generally not be admitted. 

Contact the Family Litigators at Boulby Weinberg LLP for Skilled Representation in Family Law Trials and Appeals

The family lawyers at Boulby Weinberg LLP in Toronto focus exclusively on family law matters.  Our litigation lawyers have extensive courtroom experience at all levels of trial and appellate court in Ontario. As litigators, we devise compelling and effective strategies that are complemented by a formidable courtroom presence. As a result of our strong advocacy, we enable our clients to achieve their objectives even in the most complicated or adversarial family litigation scenarios. We also represent clients at mediations and arbitrations. To discuss your matter further or arrange a consultation please complete our online questionnaire or contact the firm at 647-494-0113 ext. 102.