This spring, Canada’s highest court released a decision with respect to a parent’s ability to relocate with their children post-divorce. The decision is significant for its consideration of the impact of family violence on a child’s best interests, as well as its ruling with respect to the admission of fresh or new evidence on appeal.

Family situations can change significantly over time, even in the span of a year or two, and as such, the facts surrounding a particular issue at the heart of a dispute, such as spousal support or parenting time, may be different by the time an appeal comes around. However, there are strict rules in place to determine when new evidence may be admitted within a proceeding. This process can be confusing for those who do not have experience navigating the litigation process. Below, we will look at how new evidence is treated in family law appeals, using this most recent decision as an illustration. We will also examine what role incidents of family violence may play into court decisions involving parental mobility, even if the violence does not directly involve the children in question.

Mother Relocates Children After Violent Incident with Father

In Barendregt v. Grebliunas, the parents married in 2012 in Kelowna, British Columbia, and had two sons. They divorced in 2018. During the marriage, the parents purchased a home that required a significant amount of renovation before it could be habitable. Soon after the family moved in, there was an electrical fire.

The fire exposed other defaults in the newly purchased home, including a rodent infestation, the presence of mold, water damage, and structural issues. The father was experienced in carpentry and opted to take on the remedial work himself in lieu of hiring a contractor. At the time of the divorce, the home was still in a state of ongoing construction and was not suitable for the children.

The argument that prompted the divorce occurred in November 2018. In the midst of that argument, the father physically assaulted the mother. That night, she fled with their children to her parent’s town of Telkwa, British Columbia, located roughly ten hours away from Kelowna.

The parents entered into a parenting arrangement thereafter in which the children split their time between Telkwa and Kelowna. Eventually, the children moved permanently to Kelowna because the distance was too great for the arrangement to be sustained long-term. The plan had been for the mother to return to Kelowna as well, where the parents would alternate weeks with the boys. However, the mother did not return. Instead, she brought an application seeking permission to permanently relocate the boys to Telkwa. She indicated she would be willing to move back to Kelowna if she was unsuccessful, but the father was unwilling to relocate regardless of the outcome.

Lower Court Grants Mobility Request; Court of Appeal Allows New Evidence and Reverses Decision

The trial judge awarded primary residence to the mother, allowing her to relocate the children to Telkwa, for two reasons. First, and most significantly, was the incident of family violence which had preceded the divorce. In considering the children’s best interests, the judge highlighted three specific issues with respect to the parental relationship and their ongoing difficulties:

1. The mother seemed much more likely than the father to promote a positive attitude towards the non-custodial parent in the children. The father had repeatedly painted the mother in a negative light in various court submissions, including a number of character references from family and friends.
2. If the parties were to remain in close proximity, it seemed likely that their troubled relationship would likely have a significant negative impact on the children.
3. The parents were unlikely to be able to work together in a way that would be necessary to engage in an effective shared parenting arrangement.

In addition to the potential impact of the history of violence and negativity between the parents, the judge also highlighted the father’s financial situation, to the degree that it had an effect on his ability to make his home habitable.

Court of Appeal Distinguishes New Evidence from Fresh Evidence

The father appealed the decision to the British Columbia Court of Appeal and asked to submit new evidence regarding his financial situation and the state of the home. He had obtained financial assistance from his parents, who purchased a 50% interest in the home. His parents’ purchase allowed the father to complete much of the ongoing construction. The Court allowed the evidence, making a distinction between the admissibility of “fresh evidence” and “new evidence” on appeal.

• Fresh evidence is evidence that existed at the time of the original trial, but for some reason had not been available or known at the time. In order to admit fresh evidence on appeal, the evidence must satisfy clear criteria (known as the Palmer test), as appeals are generally reserved strictly for an examination of the lower court’s decision and reasoning, and not an opportunity to re-try the issues.
• New evidence is evidence that did not exist at the time of the original trial.

Noting that the father’s evidence regarding the house was new, the Court determined it was not subject to the same requirements as fresh evidence and allowed it to be admitted.

Upon being satisfied that the home had been made more suitable for the children, the Court granted the father’s appeal and ordered the mother and children to return to Kelowna. The mother successfully sought leave to the Supreme Court of Canada. The Supreme Court then examined the case with respect to the issue of allowing the father to admit new evidence on appeal, as well as the history of violence between the parents.

Admitting New Evidence on Appeal – Fresh Evidence vs. New Evidence

The Supreme Court found the Court of Appeal had erred when making a legal distinction between fresh evidence and new evidence. Whether it is fresh or new evidence in question, the Palmer test is used to determine the admissibility of that evidence on appeal. The Supreme Court noted that this is especially important in family law decisions involving children, because:

“Children should be afforded the comfort of knowing, with some degree of certainty, where they will live and with whom. 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”.

In the case at hand, the evidence brought forward by the father at the appeal could have been produced earlier, at the trial. So it was not new evidence, and for that reason it should not have been used to overturn the trial court’s decision.

Family Violence and the Impact on the Best Interests of the Children

The Supreme Court also looked at the decisions of the trial and the appeal courts with respect to the documented incident of family violence. The trial judge had considered the best interests of the children and how those interests could be impacted by the parents living in close proximity. After an analysis of the facts and the evidence, the trial judge determined that it was in the children’s best interests to relocate with their mother to Telkwa.

The Court of Appeal gave additional context to the parental situation by noting that none of the conflict had happened in front of the children, and that the incidents that most concerned the judge had taken place in the past. The Court of Appeal then determined that the relationship between the parents was not concerning enough to override the maximum contact principle, which the Court of Appeal interpreted to mean children should spend as much time as possible with both parents.

The Supreme Court ultimately disagreed with the Court of Appeal’s approach. It clarified that the maximum contact principle should never take precedence. Its true meaning is that children should spend as much time with their parents to the degree it is in their best interests. This means that time can be limited where factors like family violence are at play.

Contact the Mobility & Relocation Lawyers at Bortolussi Family Law in Woodbridge

Mobility and relocation can be extremely emotional and complex issues for any family to navigate. Whether you are looking to move, or object to a co-parent’s proposed move, the family lawyers at Bortolussi Family Law will provide clarity and experience when advocating for your position. We have been representing clients in family litigation at all levels of court since 1984. To discuss your circumstances and learn about the options available to you, please reach out to us online or by phone at 416-987-3300.