By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration.

The Supreme Court of Canada’s ruling in Barendregt v. Grebliunas 2022 SCC 22 (CanLII), set a uniform standard for the admissibility of new evidence on appeal. This landmark decision upholds the framework established in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, a decisive test that has shaped the course of appellate review for over four decades.

The Kelowna Custody Dispute: Catalyst for Legal Uniformity

Originating from a custody dispute in Kelowna, British Columbia, the case involved a mother’s successful relocation request based on the unsuitable condition of the father’s home. On appeal, the father sought to introduce new evidence concerning improvements to his residence, contending that it had become an appropriate environment for his children.

The Palmer Test: A Four-Pronged Approach

The Supreme Court’s reaffirmation of the Palmer Test mandates a stringent four-part analysis to determine the admissibility of additional evidence:

  • Due Diligence: The evidence could not be obtained for the original trial despite acting with due diligence.
  • Relevance: The evidence must pertain to a decisive or potentially decisive issue of the trial.
  • Credibility: The evidence should be credible, suggesting it is reasonably believable.
  • Impact: It must have the potential to alter the outcome of the trial when considered alongside the existing record.

This rigorous framework aims to balance procedural integrity with the necessity of justice, especially when new facts emerge that impact the welfare of children involved.

Fresh vs. New Evidence: Resolving Ambiguities

Barendregt v. Grebliunas eliminates the long-standing confusion between ‘fresh’ and ‘new’ evidence. Both categories, whether pertaining to pre-trial events or emerging post-judgment, are now subject to the same Palmer criteria. The emphasis lies on the parties’ due diligence in presenting all pertinent evidence during the initial trial, irrespective of its timing.

No Distinction Between Fresh and New Evidence

Previously inconsistent jurisprudence has produced ambiguity regarding whether Palmer governs evidence tied to pre-trial events (“fresh”) are to be treated the same as facts emerging only post-judgment (“new”). Barendregt now settles the law, holding the Palmer analysis applies uniformly without distinguishing fresh versus new evidence.

The critical question remains whether, through reasonable diligence, the party could have adduced the evidence during initial trial proceedings, not under which class the information falls based on timing. Newness itself grants no leeway regarding the requirement to demonstrate diligent efforts to inform the original proceedings.

Consistent Legal Standards

The decision unifies the legal landscape across Canada, ensuring that the same high standards for evidence presentation are upheld in every province.

Implications for Family Law Appeals

The Supreme Court’s ruling emphasizes the integrity of the trial process and prevents the use of appeals as a means to indirectly seek variations in parenting arrangements. Palmer motions do not constitute backdoor variation applications rather than legitimate appeals. In family law, existing statutory mechanisms and case law particularly allow revisiting parenting arrangements where circumstances materially change post-judgment. Using new evidence on appeal to indirectly achieve variation risks unfairness and protracted litigation for opponents.

Accordingly, legal practitioners must thoroughly evaluate the potential of any new evidence against the stringent requirements of the Palmer Test before pursuing appeals.

Conclusion: Diligence and the Pursuit of Justice

Barendregt v. Grebliunas reaffirms the necessity for exhaustive diligence in presenting evidence during the initial trial, upholding the principle that appeals are for reviewing judicial decisions, not for presenting new discoveries.

Let’s continue to elevate the practice of family law in Ontario!

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Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.

  • Near 40 Years of Experience: Cheryl experience exclusively practicing exclusively family law spans nearly four decades.
  • Counselling Masters Degree : With the benefit of a Masters Degree in Counselling, she provides a unique blend of empathy and keen insights.
  • Law Society Certified Family Law Specialist: Indicative of her Family Law expertise,  Cheryl is certified by the Law Society of Ontario as a Certified Family Law Specialist.
  • Family Mediator with Accreditation: She is a trusted mediator, accredited by the Ontario Association for Family Mediation.
  • ADR Professional, Designated: Cheryl is a designated professional by Ontario’s ADR Institute, ensuring judicious arbitration.
  • Numerous Honours, Awards & Accolades: Cheryl’s many honours include the prestigious Ontario Bar Association’s Award for Excellence in Family Law.

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.

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