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Justice Andromache Karakatsanis

Appeal Court applied ‘wrong test’ in admitting new evidence in child relocation case, SCC rules

Friday, May 20, 2022 @ 1:17 PM | By Amanda Jerome

Last Updated: Friday, May 20, 2022 @ 3:17 PM


The Supreme Court of Canada has released written reasons overturning a lower court decision in a family dispute over child relocation, ruling the court erred in not applying the test laid out in Palmer and admitting new evidence brought by the father on appeal.

“An appeal is not a retrial,” stressed Justice Andromache Karakatsanis for the majority in Barendregt v. Grebliunas, 2022 SCC 22.

“Nor is it licence for an appellate court to review the evidence afresh. When appellate courts stray beyond the proper bounds of review, finality and order in our system of justice is compromised,” she added, noting, however, that “not every trial decision can weather a dynamic and unpredictable future.”

Justice Andromache Karakatsanis

Justice Andromache Karakatsanis

The appeal before the court raised two questions: “When additional evidence is put forward, how should appellate courts reconcile the need for finality and order in our legal system with the need for decisions that reflect the just result in the proceedings before the court? And conversely, what framework should guide trial judges when they determine whether relocation is in a child’s best interests, to ensure a just result that can navigate what lies ahead?”

In Justice Karakatsanis’ view, “the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial.”

“Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of when the evidence, or fact, came into existence,” she explained, in written reasons released May 20.

The Supreme Court delivered judgment from the bench on Dec. 2, 2021, allowing the appeal of the mother, Ashley Suzanne Barendregt. The appeal was heard by a full bench, with eight judges in agreement and a dissent from Justice Suzanne Côté.

According to court documents, Barendregt and Grebliunas met in northern British Columbia, but moved to Kelowna, where they married in 2013. They bought a house and had two children, ages “three and five at the time of trial in 2019.”

The family home needed many repairs and “[S]ignificant money was needed to bring it to marketable condition …” The marriage ended in 2018 when the “father ‘likely’ assaulted the mother during an argument.”

The mother drove her sons approximately 10 hours that night to her parents’ house in Telkwa in the Bulkley Valley.

According to court documents, a parenting arrangement “was formalized in an interim order, splitting parenting time between the parents, alternately in Telkwa and Kelowna, before they agreed to keep the children in Kelowna with the father.”

The parents “were to alternate weekly parenting time” when the mother returned to Kelowna, however, the court noted, “she did not return.”

At trial, Justice Anthony Saunders of the Supreme Court of British Columbia “awarded primary residence of the children to the mother and allowed them to relocate to Telkwa.”

The court noted that Justice Saunders found the parties’ “acrimonious relationship” to be an issue and “doubted they could collaborate to promote the children’s best interests.” He determined that “granting the mother primary care of the children would be in their best interests.”

Justice Saunders, the court explained, found that the parties’ financial situation was a “less significant” issue and noted that the “father’s ability to remain in the house, or even in West Kelowna, was less than certain.”

The father appealed and when the hearing on appeal was almost complete, “the father’s counsel informed the court that her client’s financial situation had suddenly changed.”

He had purchased “the mother’s interest in the property; his parents had purchased a half interest in the home …”  the home had been “refinanced,” which nearly halved the monthly mortgage payments;” and the father had done more work to renovate the home.

Grebliunas “sought to admit evidence of all of these developments in the appeal.”

Justice Peter Voith, of the Court of Appeal for British Columbia, “characterized this as ‘new’ evidence because it had not existed at the time of trial.”

“As such,” the court noted, the evidence was “not subject to the Palmer test, and the due diligence criterion did not strictly govern its admission.”

When parties “seek to adduce evidence on appeal,” the Palmer test sets out: “(i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this general principle will not be applied as strictly in a criminal case as in civil cases); (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and (iv) the evidence is such that, if believed, it could have affected the result at trial.”

The B.C. Court of Appeal determined instead that “new evidence” could “be admitted if it established ‘that a premise or underpinning or understanding of the trial judge that was significant or fundamental or pivotal has been undermined or altered.’ ”

The Court of Appeal admitted the evidence, overturned the trial judge’s decision, and concluded the “children’s best interests were best served by staying in Kelowna with both parents and ordered accordingly.”

The mother appealed to the Supreme Court of Canada, raising two issues: “(i) What test governs the admission of additional evidence on appeal, and did the Court of Appeal err in admitting the evidence in this case? (ii) Did the trial judge err in his relocation analysis, warranting appellate intervention?”

In her analysis, Justice Karakatsanis noted that “[R]egardless of whether the evidence relates to facts that occurred before or after trial, the Palmer test governs the admission of additional evidence on appeal when it is adduced for the purpose of reviewing the decision below.”

“The Court of Appeal erred by applying a different test and admitting the evidence on appeal. The evidence did not satisfy the Palmer test because it could have been available for trial with the exercise of due diligence,” she added, noting that “given the availability of a variation procedure designed to address any material change in circumstances, its admission was not in the interests of justice.”

“Moreover,” she explained, “the trial judge did not err in his relocation analysis.”

Justice Saunders’ “analysis of the best interests of the children is consonant with the mobility framework set out in Gordon as refined over the past two decades,” the court explained, also noting that his “factual findings and the weight he ascribed to factors bearing on the children’s best interests warranted deference on appeal.”

“The Court of Appeal was wrong to intervene,” Justice Karakatsanis wrote.

The court explained that “Palmer applies when evidence is adduced on appeal ‘for the purpose of asking the court to review the proceedings in the court below.’” And does not “apply to evidence going to the validity of the trial process itself … nor to evidence adduced ‘as a basis for requesting an original remedy in the Court of Appeal,’ such as a stay of proceedings for an abuse of process.”

“The Palmer test is purposive, fact-specific, and driven by an overarching concern for the interests of justice. It ensures that the admission of additional evidence on appeal will be rare, such that the matters in issue between the parties should ‘narrow rather than expand as [a] case proceeds up the appellate ladder,’ ” Justice Karakatsanis noted.

In her view, the Palmer test “ensures the proper balance and is sufficiently flexible to respond to any unique concerns that arise when considering whether to admit evidence regarding facts or events that occurred after the trial.”

Regarding the Palmer test in family law cases, Justice Karakatsanis noted that “[C]ertainty 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. Evidence that does not satisfy the due diligence criterion should therefore generally not be admitted, even on an appeal of a best-interests-of-the-child determination.”

She also noted that “the best interests of the child cannot be routinely leveraged to ignore the due diligence criterion and admit additional evidence on appeal.”

“An appeal is not the continuation of a trial. Rather, the party must satisfy the judge that the interest of finality and order is clearly outweighed by the need to reach a just result in the context of the proceedings. In such circumstances, the interests of justice may demand additional evidence to be admitted on appeal,” she added.

In this case, the court determined that “the Court of Appeal erred in admitting the father’s evidence on appeal.”

“It applied the wrong test and failed to consider whether the father exercised due diligence. The evidence could have been available for trial with due diligence. And in any event, this matter could have been dealt with solely on the basis that a fresh evidence motion was not in the interests of justice given the availability of a variation procedure,” Justice Karakatsanis explained.

On the second issue, Justice Karakatsanis noted that “the acrimonious relationship between the parties — featuring abusive conduct during the marriage, at separation, and at trial — was a significant factor in the trial judge’s relocation analysis.”

On appeal, the father argued that “such ‘friction’ is ‘not unusual for separating couples.’ ”

“The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable,” Justice Karakatsanis stressed, noting that “[H]arm can result from direct or indirect exposure to domestic conflicts …”

She explained that the “recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis.”

“Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases,” she added.

The court determined that “[O]n the whole, the trial judge found that relocation would best promote the children’s welfare, notwithstanding the impact on the relationship between the children and their father. This was a determination the trial judge was entitled to make, and it was owed deference on appeal.”

Justice Suzanne Côté

Justice Suzanne Côté

Justice Karakatsanis noted that “it was not the place of the Court of Appeal to decide that the broader context could ‘attenuate’ the seriousness of the father’s behavior in the absence of an overriding and palpable error. Nor was it the court’s place to reweigh a factor that had been carefully considered by the trial judge.”

“A difference in opinion does not provide an appellate court licence to eclipse the trial court’s judgment in favour of its own. The Court of Appeal was wrong to dispense with deference in the absence of a reversible error,” she wrote.

The majority allowed the appeal, setting aside the Court of Appeal’s decision and restoring “paras. 1 to 6 of the trial judge’s order,” allowing the children to live with their mother in Telkwa.

In her dissent, Justice Côté agreed that the Palmer test “governs, as it applies to both ‘fresh’ and ‘new’ evidence,” but disagreed with Justice Karakatsanis’ “application of Palmer to the facts of this appeal.”

“On a proper application of Palmer, I would admit the new evidence and remand the appeal to the trial court for reconsideration of the children’s best interests in light of the new information regarding the father’s financial situation and the condition of the West Kelowna home. The effect of holding otherwise would be to relocate 2 children 1,000 km away from their father based on an inaccurate picture of reality,” she wrote.

Georgialee Lang, of Georgialee Lang & Associates and counsel for the respondent, told The Lawyer’s Daily that “this decision is going to lead to a slowdown in applications to admit new or fresh evidence in courts of appeal across Canada.”

Georgialee Lang, Georgialee Lang & Associates

Georgialee Lang, Georgialee Lang & Associates

“There’s no question that this decision suggests that it’s not something that the Supreme Court of Canada looks on favourably,” she added.

In family law context, Lang noted that the Supreme Court is suggesting that “these kinds of applications at the Court of Appeal actually usurp the role of the lower court” because “in family law cases you can go back and ask the lower court to review a particular situation based on a material change of circumstance.”

“Now, the Supreme Court of Canada seems to think that’s a better way and is more cost-effective, but what I think they don’t understand is that this is not going to reduce family law litigation,” she said, noting that bringing “a fresh application in the lower court” is “going to serve to increase litigation.”

A point of interest for Lang was the court’s acknowledgement of Gordon v. Goertz. She noted that her client’s position before the Court of Appeal was that Gordon v. Goertz is “sadly behind the times.”

“It was an old decision,” she said, noting that the top court “acknowledged that in their reasons because they confirmed that the common law over the last 25 years, and the amendments to the Divorce Act and provincial court family statutes, have modified Gordon v. Goertz.”

Another noteworthy aspect that Lang pointed out that that Justice Côté’s dissent “took issue with the court discussing the new amendments to the Divorce Act because, of course, they weren’t before the court.”

“This case was decided before the Divorce Act was amended, but the court spent quite a bit of time reviewing these amendments and how they changed Gordon v. Goertz,” she said, noting that it’s “unusual” for a court to “opine on something that wasn’t really before it.”

The West Coast LEAF Association and the Rise Women’s Legal Centre were co-interveners before the Supreme Court.

Kate Feeney, director of litigation for West Coast LEAF and one of the lawyers representing the Rise Women’s Legal Centre, said the two organizations intervened “to address how the B.C. Court of Appeal minimized the trial judge’s findings about the father’s abuse of the mother and the relevance of those findings to the relocation decision.”

“We were really happy to see the decision in this case affirmed that family violence is a critical consideration in the best interest of the child analysis, both in the context of a relocation decision and also generally. We’re excited that the court makes several observations about family violence that we think will be relevant to all family violence cases,” she said.

Feeney highlighted some of the observations in the analysis, noting the court’s remarks on the impacts of family violence on children, the difficulty in proving family violence, that most family violence goes unreported and that the prospect of relitigation on appeal could deter abuse survivors from coming forward.

“The Supreme Court of Canada addressed some common myths and stereotypes about family violence in the context of this decision and that’s going to be really helpful for lawyers in family violence cases when they’re confronting these common barriers to courts giving meaning to family violence in family law cases,” she explained.

Another significant takeaway for lawyers, Feeney noted, is “the court’s discussion of the maximum contact principle.”

She explained that the court discussed “it in the context of relocation applications, but the analysis is more generally applicable.”

The Supreme Court “notes a trend in the law to view maximum contact with each parent as synonymous with a child’s best interest. But the court affirms that the principle should only be given effect to the extent that contact with each parent is in the best interest of the child,” she said, noting “there’s no presumption of shared or equal parenting time or a parent’s regular access.”

“I think that has been the law, but what the Rise clinic and West Coast LEAF have noticed, at least in the B.C. context, is that a lot of courts are conflating maximum contact with each parent with the best interest of the child, rather than determining what amount of contact with each parent is in the best interest of the child. It’s an important clarification, in my view,” she added.

Darius Bossé, Power Law

Darius Bossé, Power Law

Darius Bossé, of Power Law and counsel for the appellant, told The Lawyer’s Daily that the Supreme Court “really clarified that the Palmer test works with the viable framework to still have best interest of the children considered.”

“In fact, the court even explains that the finality of court orders in the context of custody hearings, or the context of relocation orders, is actually in the best interest of children in a lot of instances. Too much flexibility in allowing new evidence and then using that new evidence to replace findings made by the trial judge, in fact, did violence to the principle of finality,” he explained.

Bossé said the court is “obviously sending a signal that an appeal is not a way to relitigate issues with a roadmap of what weaknesses any party’s position might have been at first instance.”

“Essentially, you can’t just take the first instance decision and find where your weaknesses were and go and correct your record on appeal as motions to adduce new evidence,” he explained.

Like Feeney, Bossé also highlighted the court’s analysis with regards to the maximum contact principle.

“I think on that point, the Supreme Court sends a clear message that any family violence in any form is always relevant and important factor to be considered by Canadian courts when analyzing what’s in the best interests of children,” he stressed.

Photo credit: Photo of Justice Andromache Karakatsanis by David Balfour Photography.
Photo of Justice Suzanne Côté by Philippe Landreville.


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