Court Cases & Orders

Supreme Court of Canada: What’s The Rule for New Evidence That Comes to Light After Trial? 

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Supreme Court of Canada: What’s The Rule for New Evidence That Comes to Light After Trial? 

For litigants who must go through the Family Court system – especially if self-represented – the process can be confusing.   If the trial does not go as expected, a litigant may decide to launch an appeal. Both levels of hearing engage various procedural rules, including several that relate to admitting evidence.

But in a classic conundrum seen in many TV crime dramas, what if new evidence comes to light after a trial, that may impact the validity or correctness of the trial ruling?  Can that new evidence be brought forward at an appeal?

This was the key question tackled by the Supreme Court of Canada recently in a landmark Family Law case called Barendregt v. Grebliunas. The Court confirmed the governing principles, which in some cases will preclude a litigant from getting a second “kick at the can” at the appeal, by essentially re-doing trial on account of some new evidence.

To understand the importance of this ruling, we must set out two legal points that help in understanding the framework.

First, a basic principle in Canadian law is that an appeal is not a chance to have a re-trial.  Nor is it a chance for an appeal court to consider the evidence afresh.   Rather, an appeal court’s role is simply to review the trial reasoning and ultimate ruling for any errors.  As the Supreme Corut observed, “When appellate courts stray beyond the proper bounds of review, finality and order in our system of justice is compromised.”

Secondly, there is a set of well-established principles that apply whenever a party wants to bring forward additional evidence on appeal, for the specific purpose of reviewing the trial decision.   They are found in the older 1980 court decision of Palmer v. The Queen, which states that such new evidence can be admitted when:

  • it could not, by the exercise of due diligence, have been obtained for the trial;
  • it is relevant (in that it bears upon a decisive, or potentially decisive issue);
  • it is credible (in the sense that it is reasonably capable of belief); and
  • it is such that, if believed, it could have affected the result at trial.

This Palmer case  and were scrutinized by the Supreme Court in Barendregt v. Grebliunas as part of its judgment.

With those elementary points established, the Court turned to the specific facts.

The background of the matter involved a B.C. couple who were married in 2013, and had two children. The house they bought soon after marriage was an ongoing construction project that was still far from complete when they separated in 2018.  They parted ways when the father assaulted the mother during an argument.  The mother then drove with the children for 10 hours to Telkwa, where her parents were living, while the father stayed in Kelowna.

They later agreed that the mother would return to Kelowna, and they would do an alternating weekly parenting arrangement.   However, the mother never returned.

The matter went to court, with the mother asking permission to permanently relocate the children to Telkwa with her.   The trial court granted her request, and awarded primary custody to her. It concluded that the move was in the children’s best interests, especially in light of the parents’ acrimonious relationship which made it unlikely they could collaborate.

Importantly, a small part of the trial court’s consideration was that the initial family home in Kelowna where the father still lived needed significant repairs.

The father appealed.  In a “smoking gun”-type moment as the appeal was wrapping up, the father advised the court that his financial situation had now changed.  The Kelowna house, that had been an ongoing construction project, was apparently now more habitable and more suitable for housing the children.

According to this new evidence, he had purchased the mother’s interest in the property, and his own parents (the paternal grandparents) had purchased a half-interest in the home.  He had also done some renovations and refinanced, making the monthly mortgage payments more manageable.

The father asked the Appeal Court to admit this late-breaking evidence, and reconsider whether the trial ruling on allowing the children to move was now incorrect.

The Appeal Court agreed, characterizing the evidence as “new” since it had not existed at the time of the original trial.  In the Appeal Court’s view, this made it not subject to the Palmer test, and was admissible since it established a “significant”, “fundamental” or “pivotal” premise or understanding that the trial court had considered and used in making its ruling on primary care of the children.  Since that situation had changed, the Appeal Court overturned the trial court decision, and ordered the children and mother to move back to Kelowna.

The mother appealed – successfully – to the Supreme Court of Canada.  It held that the Appeal Court was wrong to admit this new evidence and overturn the trial ruling on the basis of it.

First the Supreme Court rejected the argument that for these purposes there is a legal distinction between admitting “fresh evidence” (i.e. events that occurred before trial) and “new evidence” (i.e. events that occurred after trial).   Regardless of the timing, the correct approach is still to apply the 4-branch Palmer test anytime a party wants to adduce new evidence for the purposes of reviewing the lower-court decision.  The Appeal Court had used a different test, and was incorrect to do so.

Moreover, applying the test to this case was simple:  The father failed the first branch.   If he had exercised due diligence prior to trial, he would have uncovered the evidence he was trying to newly bring forward.   It could not be admitted now, even where his appeal related to the best interests of the children in connection with the move.  Plus, the trial court’s factual conclusions as to what was in the best interests of the children was entitled to deference.  The Court of Appeal was wrong to intervene.

The Supreme Court emphasized that an appeal is not the continuation of a trial.  Although in some circumstances the interests of trial may demand that additional evidence can be admitted on appeal, this was not one of them.  It accordingly ordered that the trial court ruling should be restored, and that the children were allowed to live in Telkwa with the mother.

For the full text of the decision, see:

Barendregt v. Grebliunas, 2022 SCC 22

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.