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Family - Fresh Evidence on Appeal. G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered the admission of fresh evidence, here in a family law context:[10] The test for the admission of fresh evidence on appeal as reproduced from R. v. Palmer (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, is set out in Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 50. The fourth criterion of the test, which is the most important here, is that the evidence must be such that if believed could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[11] Where a case involves the best interests of the child, it may require “a more flexible application of the fourth Palmer criterion”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 66. In determining whether fresh evidence should be admitted, the overarching consideration is the interests of justice: Barendregt, at para. 3. . K.R. v Children’s Aid Society of London and Middlesex
In K.R. v Children’s Aid Society of London and Middlesex (Div Court, 2023) the Divisional Court considered the more lenient test for fresh evidence in the family law context:[30] As is often the case, there is evidence of subsequent events that the parties seek to place before this Court for the hearing of this appeal. The general test for the admission of fresh evidence on an appeal is set out in R. v. Palmer 1979 CanLII 8 (S.C.C.), [1980] 1 S.C.R. 759. However, the Supreme Court of Canada has held that the test for fresh evidence in a child protection case should be more relaxed: See Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.) 1994 CanLII 83 (SCC), [1994] 2 S.C.R. 165. . Barendregt v. Grebliunas
In Barendregt v. Grebliunas (SCC, 2022) the Supreme Court of Canada reconsiders the Palmer fresh evidence test in the context of a family law child custody case. The case also considers the interaction of the Palmer fresh evidence doctrine with statutory family law 'variation' provisions [paras 73-80]:[4] In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. At the same time, finality and order are critically important in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.
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(3) The Palmer Test in Family Law Cases Involving the Best Interests of the Child
[65] I turn now to an underlying question raised by this appeal: the flexible application of Palmer in cases involving the best interests of the child.
[66] This Court has explained that these cases may require a more flexible application of the fourth Palmer criterion: Catholic Children’s Aid Society, at p. 188. The Court recognized that the best interests analysis — which takes into account a broad range of considerations, including the needs, means, condition and other circumstances unique to the child before the court — widens the scope of evidence that could affect the result. This criterion, however, remains a condition precedent for the admission of evidence in family appeals. But the flexible approach to the fourth criterion is not the only aspect of Palmer that warrants further discussion in the family law context. Two other aspects include (i) the exceptional circumstances where a failure to meet due diligence is not fatal; and (ii) the existence of variation schemes that address factual developments that postdate trial. I address each in turn.
(a) A Failure to Meet Due Diligence Is Not Fatal in Exceptional Circumstances
[67] First, given both the premium placed on certainty in cases involving children and the importance of having accurate and up-to-date information when a child’s future hangs in the balance (Catholic Children’s Aid Society, at p. 188), evidence that does not meet the due diligence criterion may nonetheless be admitted in exceptional circumstances. Let me explain. Finality and order — in both their individual and systemic dimensions — are particularly important in cases involving the best interests of the child: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. Children should be afforded the comfort of knowing, with some degree of certainty, where they will live and with whom. And unfortunately, an appeal only prolongs the cloud of uncertainty and the hardship and stress a child must endure.
[68] Protracted litigation also places additional strain on the parties’ resources. In the context of a spousal separation, families who resort to the adversarial process are often in crisis, with two households now in need of support. As this Court recognized in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, family litigants, particularly women, are often already shouldering the economic consequences of a marital breakdown. Some will be unable to afford the financial and emotional cost of court proceedings at first instance, let alone the strain of relitigating the facts on appeal. Needlessly prolonging this adversarial process does little to assist parties who must find a way to restructure their relationships and cooperate for the sake of their children.
[69] Certainty in a trial outcome can ensure an end to a period of immense turmoil, strife, and costs; parties should do what they can to promote it. Evidence that does not satisfy the due diligence criterion should therefore generally not be admitted, even on an appeal of a best-interests-of-the-child determination.
[70] That said, an absence of due diligence may in rare instances be superseded by the interests of justice: see Children’s Aid Society of Halton (Region) v. A. (K.L.) (2006), 2006 CanLII 33538 (ON CA), 32 R.F.L. (6th) 7 (Ont. C.A.), at para. 56. There may be exceptional cases involving a child’s best interests where the need for finality and order may need to yield in the interests of justice. The intervener the Office of the Children’s Lawyer provides one such example: in urgent matters requiring an immediate decision — a pressing medical or other issue bearing on the child’s best interests — it may not serve the interests of justice to require a party to show due diligence and further prolong or delay proceedings.
[71] In other cases, admitting the additional evidence may not offend the principle of finality at all, despite the failure to meet the due diligence criterion. For instance, where the appellate court has already identified a material error in the trial judgment below, evidence that may help determine an appropriate order — whether to show the need for a new trial, support a substitute order, or otherwise — may exceptionally warrant admission: Children’s Aid Society of Halton (Region), at paras. 27 and 52‑56; Children’s Aid Society of Toronto v. P. (D.) (2005), 2005 CanLII 34560 (ON CA), 19 R.F.L. (6th) 267 (Ont. C.A.), at paras. 8‑9. This may promote timely justice, consistent with a child’s need to have their future determined with due dispatch: C. Leach, E. McCarty and M. Cheung, “Further Evidence in Child Protection Appeals in Ontario” (2012), 31 C.F.L.Q. 177.
[72] To be clear, such exceptional circumstances do not dispense with the other Palmer criteria — the evidence still must be relevant, credible, and have some material bearing on the outcome. Similarly, the best interests of the child cannot be routinely leveraged to ignore the due diligence criterion and admit additional evidence on appeal. An appeal is not the continuation of a trial. Rather, the party must satisfy the judge that the interest of finality and order is clearly outweighed by the need to reach a just result in the context of the proceedings. In such circumstances, the interests of justice may demand additional evidence to be admitted on appeal. . A.C.V.P. v. A.M.P.
In A.C.V.P. v. A.M.P. (Ont CA, 2022) the Court of Appeal considered the classic Palmer fresh evidence test in a family law context:[13] The test for admitting fresh evidence on appeal requires the moving party, in this case the mother, to satisfy four criteria: (i) the evidence could not have been adduced at trial, even with due diligence; (ii) the evidence must be relevant, in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be credible, in that it is reasonably capable of belief; and (iv) the evidence must be such that, if it is believed, and when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result at trial: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
[14] This court has repeatedly affirmed that the Palmer criteria are more flexible where an appeal involves the best interests of children, in which case it is important to have the most current information possible “[g]iven the inevitable fluidity in a child’s development”: Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, at para. 58, citing Goldman v. Kudelya, 2017 ONCA 300, at para. 25, citing Children’s Aid Society of Owen Sound v. R.D. (2003), 2003 CanLII 21746 (ON CA), 178 O.A.C. 69 (C.A.), at para. 21. . N.S. v. R.M.
In N.S. v. R.M. (Div Ct, 2021) the Divisional Court considers the test for fresh evidence in a family law appeal:[9] The father argues that, in a family law appeal, where the best interests of the children are at issue, the court generally admits fresh evidence of the children’s current circumstances to ensure it has up-to-date information. He relies on Decaen v. Decaen, 2013 ONCA 218, where the Court of Appeal admitted fresh evidence of the children’s current circumstances in a custody case, noting that where children’s welfare is at stake, a more flexible approach to the fresh evidence test is appropriate.
[10] In Sengmueller v Sengmueller, 1994 CanLII 8711 (Ont. C.A.), the court set out a three-pronged test for the admission of fresh evidence on appeal: (i) the tendered evidence is credible; (ii) it could not have been obtained, by the exercise of reasonable diligence, prior to trial; and (iii) the evidence, if admitted, will likely be conclusive of an issue in the appeal.
[11] The Sengmueller test is not significantly different from the test set out in R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, which requires the moving party to establish four criteria to admit fresh evidence: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. . K.K. v. M.M.
In K.K. v. M.M. (Ont CA, 2021) the Court of Appeal considered fresh evidence in a family appeal:[17] The test for admitting fresh evidence on appeal requires the moving party to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. This court recently reaffirmed in Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, that the Palmer criteria are more flexible where an appeal involves the best interests of children, where it is important to have the most current information possible “[g]iven the inevitable fluidity in a child’s development”: Goldman v. Kudelya, 2017 ONCA 300, at para. 25, citing Children’s Aid Society of Owen Sound v. R.D. (2003), 2003 CanLII 21746 (ON CA), 178 O.A.C. 69 (C.A.), at para. 21.
[18] Notwithstanding the flexible approach for receiving fresh evidence where an appeal addresses the best interests of children, the fresh evidence in the present case does not meet the test for admission.
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