In Barendregt v Grebliunas, 2022 SCC 22 [Barendregt], the Supreme Court of Canada (“SCC”) examines the process by which new information can be introduced by the parties on appeal, specifically in the context of parenting relocation applications. Examining the various interests at play in a relocation application, the SCC ultimately concludes that finality is one of the most important principles to be considered by the court in sensitive situations, such as those involving children (Barendregt, para 4).
The parties met in 2011, and soon thereafter, the mother moved to Kelowna, British Columbia, to be with the father. Following the parties’ separation in 2018, the mother moved with the children from Kelowna to Telkwa, where her parents were located, about 10 hours away from Kelowna. The parties initially agreed that the children would remain in Kelowna with the father, and that they would alternate weekly parenting time when the mother returned to Kelowna. However, she instead applied to the court to relocate the children to Telkwa (Barendregt, paras 12-14).
The trial judge awarded the primary residence of the children to the mother and allowed them to relocate to Telkwa because of two primary reasons (Barendregt, paras 19-21):
- The parents had an acrimonious relationship, and the court believed the mother was more likely to facilitate access to the father than vice versa.
- The family house, which the father still resided in, was not habitable, and the father was not financially able to make it so.
The father appealed and sought to adduce additional evidence about his finances and renovations made to the house since the trial. This included additional sources of funding, as well as further construction on the house in the time since the initial decision (Barendregt, para 22). The British Columbia Court of Appeal (“BCCA”) stated that this was new evidence which had not existed at the time of trial. The BCCA admitted the appeal and held that as one of the trial judge’s two main considerations was no longer applicable, the relocation was not justifiable, and therefore that the children’s best interests demanded that they stay in Kelowna (Barendregt, paras 23-25).
The mother appealed the BCCA’s judgement.
Issues before the SCC
- What test governs the admission of additional evidence on appeal, and did the BCCA err in admitting such evidence in this case?
- Did the trial judge err in his relocation analysis, warranting appellate intervention?
The SCC’s judgement
Writing for the court (save Justice Côté, who dissented in part), Justice Karakatsanis allowed the appeal and set aside the judgement of the BCCA. She held that the BCCA had erred in admitting the new evidence of the father on appeal and instead should have applied the test stated in Palmer v The Queen,  1 SCR 759 [Palmer] (Barendregt, para 28).
The SCC noted that appellate courts generally enjoy the discretion to admit additional evidence but that the admission of such evidence is subject to the Palmer test. Upon parties seeking to adduce such evidence, the four criteria in Palmer apply (Barendregt, para 29):
- The evidence could not, by the exercise of due diligence, have been available for the trial.
- The evidence is relevant in that it bears upon a decisive or potentially decisive issue.
- The evidence is credible in the sense that it is reasonably capable of belief; and
- The evidence is such that, if believed, it could have affected the result at trial.
Justice Karakatsanis noted that the test was “purposive, fact-specific, and driven by an overarching concern for the interests of justice” (Barendregt, para 31). The ultimate objective of the test was to ensure that evidence would be admitted at the appellate level only in exceptional circumstances. This was to prevent parties from effectively relitigating their entire case, and to ensure that the objectives of “finality and order in the justice system, and reaching a just result in the context of the proceedings” were met (Barendregt, paras 31-34).
The requirement of due diligence imposed under the Palmer test ensured that all parties would be required to put their best case forward at trial and ensure an element of finality in the proceedings (Barendregt, paras 36-38). In short, “evidence that could, by the exercise of due diligence, have been available for trial should generally not be admitted on appeal” (Barendregt, para 43). This principle also applies in the family law context.
In assessing whether or not the evidence should be admitted on appeal, the BCCA had held that the Palmer test only applied to evidence which had existed at the time of the proceedings and therefore declined to apply the test when assessing whether the evidence should be admitted (Barendregt, para 51). The SCC held that this constituted an error; the Palmer test was sufficiently flexible to be applicable under the circumstances and, further, was the prevailing law at the time (Barendregt, paras 53-55). The test’s flexibility, they found, was particularly important in cases where a ‘best interests of the child’ determination had to be made, as finality was a pressing concern. The SCC held that additional evidence was to be introduced only in rare instances, such as where the interests of justice superseded the absence of due diligence (Barendregt, para 70).
This determination was particularly important in the present case because the father could have applied for a variation of the parenting order, which would have required a higher burden of proof than that required on appeal (Barendregt, para 73). The SCC considered Gordon, which sets out a two-stage inquiry when determining variation orders (Barendregt, para 105):
- The party seeking variation must show a material change in the child’s circumstances.
- The judge must determine what order reflects the child’s best interests in the new circumstances.
The SCC cautioned that courts must be wary of litigants who sought to appeal and introduce additional information to avoid this higher burden of proof (Barendregt, paras 75-78).
Keeping these factors in mind, the SCC overruled the BCCA’s decision and restored the trial judge’s decision (Barendregt, para 190). It held that the evidence that the father sought to introduce on appeal could have been introduced on trial if due diligence had been conducted; as a result, the evidence should be omitted from the consideration of the appeal (Barendregt, para 27). Further, the SCC held that upon considering the ‘best interest of the child’ principle, it was satisfied that the trial court had not erred in allowing the mother to relocate with the children to Telkwa, especially given concerns of family violence on the part of the father. Additionally, the trial court had also stated that the mother appeared to be more willing to facilitate a positive relationship between the father and the children, whereas the father’s approach to the trial indicated that he would not be willing to do the same for the mother (Barendregt, paras 159, 161-62). As a result, if the father wished to change the existing parenting order, he would have to make an application for variation and satisfy the parameters of the Gordon test (Barendregt, para 80).
Justice Côté dissented in part, stating that the evidence ought to be admitted in part and that the matter ought to be remanded to the trial court for reconsideration in light of the new evidence (Barendregt, para 191). Stating that the SCC had erred in assessing Gordon when it was not truly part of the argument before the court, Justice Côté upheld the application of Palmer (Barendregt, paras 192-193). Applying the Palmer test, she concluded that the new evidence introduced by the father could have affected the result (Barendregt, para 216). She emphasized that while finality was important, the proper resolution of the dispute and the children’s best interests took precedence.
Given the circumstances, Justice Côté held that the objective of finality would not be achieved by directing the father to apply for variation, which would impose additional financial and emotional costs on the parties (Barendregt, para 205). Instead, she called for the matter to be remanded to the trial court and reconsidered based on the new evidence (Barendregt, para 230).
In Barendregt, the SCC places great emphasis on ensuring finality. Noting that applications for parenting orders involve particularly vulnerable subjects – children at the centre of a parental separation – the SCC holds that the principle of finality, as espoused in Palmer, is particularly important in such situations.
In this way, the SCC explores the chasm between the best interests of the child principle and the principle of finality of proceedings, at times even seeming to imply that a conclusion was necessarily a part of the ‘best interests of the child.’
However, in its assessment of the ‘best interests of the child’ principle, the SCC appears to emphasize finality more than other considerations. The court notes that the assessment is contextual and fact-specific concerning the children in the situation. Nevertheless, the SCC focuses primarily on finality to bring a measure of stability and places less emphasis on other important considerations, such as those relating to family violence (although these considerations also come into play when making the final assessment).
Further, the SCC notes that courts should not allow the process for variation orders to be subverted by allowing such matters to be decided through the appeals process, especially keeping the Gordon test in mind. The SCC’s focus on disallowing such appeals is to ensure that parties do not attempt to circumvent the higher burden required for variation applications through the appeal procedure. However, Justice Côté is correct when noting that requiring parties to go through a variation procedure in addition to the existing litigation would result in much higher costs to the parties and delay the final determination of the judgement.
In its assessment of the Palmer test, the SCC notes that the objectives of the test are to ensure that only that evidence which could not have been reasonably obtained at the time of the trial, and which would have had a material impact on the outcome of the trial, would be included at the time of appeal. The scope of the test is deliberately narrow to ensure that extraneous considerations are not introduced on appeal as a way to prolong the litigation. The SCC thus places great emphasis on the trial process and bolsters the parties’ duty to act with all due diligence when at trial.
Ultimately, the goal of the courts is to preserve the trial courts’ role and ensure the speedy resolution of disputes, especially where children are concerned. The limitations on the introduction of evidence to only those exceptional situations, and where disallowing such evidence would impact the operation of justice are aimed at achieving those objectives. In practice, however, requiring that a full variation application process be followed may only prolong the period during which the children are subject to further uncertainty about the future. This leads to an interesting contradiction in the law and one that the Supreme Court cannot resolve at a policy level. It remains to be seen whether legislatures will seek to address it in the future.