By Rebecca Winninger, Senior Associate Lawyer, Lam Family Law*

We assist family lawyers and select direct clients with appeals, and fresh evidence is an issue that comes up frequently. In some cases, the fresh evidence which a party seeks to introduce is voluminous, and the appeal begins to resemble what the Supreme Court of Canada (“SCC”) referred to in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII) as a “disguised application to vary”.  With this in mind, I want to review the differences between an appeal and a motion to change, and discuss how to decide which course to take when circumstances have changed after trial.

Neither avenue offers a de novo hearing. In order to promote finality, appellate courts rarely consider events which occurred after trial. For the same reason, on a motion to change, the court will not reconsider events which occurred before the trial.

The Test to Admit Post-Trial Evidence on Appeal

An appellate court will not consider “new” or post-trial evidence unless it meets the stringent four-part test for admitting fresh evidence on appeal, from Palmer v. The Queen, 1979 CanLII 8 (SCC), at p. 775:

  1. 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);
  2. the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
  3. the evidence is credible in the sense that it is reasonably capable of belief; and
  4. the evidence is such that, if believed, it could have affected the result at trial.

In the past, some appellate courts in Canada, including the Court of Appeal for Ontario (“ONCA”), had applied the Palmer test more flexibly in cases involving children. This more flexible approach was so that the court could have the most current information possible when determining the child’s best interests: see, e.g., Goldman v. Kudelya, 2017 ONCA 300 (CanLII), at para 25.

However, in Barendregt v. Grebliunas, 2022 SCC 22 (CanLII), the SCC held that the Palmer test applies even when the appeal concerns the best interests of a child: paras 66 & 69-71.

Appellate courts also used to distinguish between “fresh evidence”, which existed at the time of trial but was not put before the court, and “new evidence” which only arose after trial. The SCC held in Barendregt that the Palmer test applies whether the evidence arose before or after trial. The “core inquiries” under the test remain the same regardless of when the evidence or fact came into existence: paras 3, 27, 48-50, & 55.

To summarize, evidence arising after trial – such as a child’s resistance to a new parenting schedule – must still meet the stringent Palmer test to be considered on appeal. The Palmer test ensures that admission of fresh evidence will be rare, and that the issues between the parties will “narrow rather than expand as [a] case proceeds up the appellate ladder”: Barendregt, at para 31.

Even if the evidence is admitted, the appeal court must defer to the trial judge’s findings that are not affected by the post-trial evidence, absent palpable and overriding error: Barendregt, at para 81.

Maintaining the Distinct Purposes of Appeals and Motions to Change

The SCC also observed in Barendregt that it may not be necessary to admit post-trial evidence on appeal because variation schemes exist. Courts “must be wary of permitting parties to use the Palmer framework to circumvent legislative schemes that provide specific procedures for review”: paras 73 & 75.

Neither an appeal nor a motion to change is a de novo hearing. The purpose of an appeal is to determine whether the trial judge erred, and the focus is not on “the implications of subsequent events”. The assessment is retrospective. In a motion to change, the court assumes the correctness of the original decision, and the moving party must prove a material change in circumstances. If the moving party meets this burden, “the assessment is prospective”. In a parenting case, the court will make a fresh inquiry as to the child’s best interests, considering the findings of fact of the judge who made the previous order and the evidence of new circumstances: paras 75-76.

It is essential that “variation procedures and appeals remain distinct in the family law context” so that litigants do not unfairly have to “defend the original order – absent a material error – in the wrong forum with appellate judges effectively performing work assigned to first instance judges in variation procedures”. Consequently, where the request to admit post-trial evidence amounts to “a disguised application to vary”, the court may refuse to admit it without considering the Palmer test: paras 78-80.

A motion to change is likewise not an “indirect route of appeal” from the original order. The court cannot retry the case. It must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Gordon v. Goertz, 1996 CanLII 191 (SCC), at para 11.

Choosing Between a Fresh Evidence Motion and a Motion to Change

A motion to change is generally the correct and natural forum to address post-trial events, if you can argue that the post-trial events amount to a material change in circumstances.

That said, if you are appealing an order and a highly probative, credible, and focused piece of evidence comes into existence after trial, then there is a chance the appellate court will consider it.

The pre-Barendregt case law shows that independent evidence regarding post-trial events is more likely to be admitted on appeal. For example, Bors v. Bors, 2021 ONCA 513 (CanLII) was a parental alienation case where the ONCA admitted a therapist’s report summarizing therapeutic work carried out with the family after trial. However, the report was attached to an affidavit from the father which the ONCA did not admit, characterizing the affidavit as “a whole new record”: paras 59-62. The Palmer framework is “not an opportunity for parents to continue an affidavit war”: R.F. v. J.W., 2021 ONCA 528 (CanLII), at para 8. The court will not consider evidence that is similar to other evidence led at first instance, which the judge did not give effect to: Austin v. House, 2023 ONCA 55 (CanLII), at para 14.

The ONCA also admitted a report from the children’s therapist in Fiorito v. Wiggins, 2015 ONCA 729 (CanLII), and correspondence from a psychologist in M.P.M. v. A.L.M., 2021 ONCA 465 (CanLII), where the final order called for the psychologist to oversee counselling for the family, but the psychologist was not willing to do so without continued oversight by the court: paras 2-4 & 7-10.

Bear in mind that if your client does not appeal an order, then the legal holdings and factual findings of the trial judge stand and cannot be relitigated in a subsequent motion to change.

In addition, you may not be able to move to vary an order while an appeal is outstanding. If the appeal is successful, the motion to change may be superfluous. To allow a motion to change to proceed while the appeal is outstanding would be inconsistent with the primary objective of the Family Law Rules: Unoh v. Agboola, 2023 ONSC 5751 (CanLII) (Div Ct), at paras 41-42 & 44-45, citing Hawkins v. Schlosser, 2013 ONSC 2120 (CanLII), at para 17 & Lapier v Roebuck, 2017 ONSC 1640 (CanLII), at para 49.

 

*with thanks to Vanessa Lam for her suggestions and edits.