Admission of New Evidence on Appeal: The SCC’s decision in Barendregt v. Grebliunas

  • June 10, 2022
  • Justyna Waxman, family lawyer at Torkin Manes LLP

On May 20, 2022, the Supreme Court of Canada released its long-awaited reasons in Barendregt v. Grebliunas, a landmark decision which considered when and how an appellate court can consider new evidence in family law cases.

The case before the Supreme Court of Canada involved the appeal of a 9-day trial in British Columbia which primarily addressed the mother’s application to move the children from Kelowna, BC, where the family had lived prior to the parents’ separation, to the mother’s home community of Telkwa, BC. The father was opposed to the relocation.

The trial judge granted the mother’s request to relocate the children to Telkwa for two reasons. The trial judge’s primary concern was that if the mother stayed in Kelowna, she would be subjected to continued abuse from the father. A secondary concern was the state of the father’s home in Kelowna, which required work to be habitable. While the father said that he would obtain financing to complete the work and buy out the mother’s share of the home, there was insufficient evidence before the court regarding the father’s financing options.

The father appealed the trial judge’s decision to the BC Court of Appeal. At the conclusion of the appeal hearing, the father sought to introduce affidavit evidence that he had refinanced the home and his parents had increased their personal line of credit, which went towards renovations that had been partially completed. He then asked the Court of Appeal to consider this new information when deciding the appeal.

The Court of Appeal characterized the additional evidence from the father as “new” evidence because it had not existed at the time of trial. In doing so, the court applied a different test than that set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, which requires courts to apply the following four criteria when deciding whether to admit additional evidence to supplement the record on appeal: