When a parent wishes to relocate with a child, for example, to be closer to family, this may affect the other parent’s access rights (now known as parenting time) and result in a dispute.

This article looks at the recent decision of the Supreme Court of Canada in Barendregt v Grebliunas. Following the trial judge’s decision to permit the mother to relocate with the children, the Supreme Court was called on to decide whether additional evidence of the father’s finances could be admitted after trial.

Mother moves and seeks to relocate children

The mother and father lived in Kelowna, British Columbia, with their two sons. Their relationship ended in 2018 when the father “likely” assaulted the mother during an argument. That night, she drove the two boys some 10 hours to her parents’ home in Telkwa.

Parenting time was originally split between the parents, alternately in Telkwa and Kelowna, before they agreed to keep the children in Kelowna with the father. When the mother returned to Kelowna, they were to alternate weekly parenting time, but she did not return.

The central issue at trial was whether the children should be relocated to Telkwa with the mother or remain in Kelowna.

Trial judge orders relocation to Telkwa

In light of the parties’ acrimonious relationship and its impact on the children, as well as the parties’ financial situation, the trial judge concluded that relocation to Telkwa with their mother would be in the best interests of the children. Specifically, the house in Kelowna needed an influx of money to make it habitable and the father’s ability to remain there was less than certain.

Court of Appeal reverses decision, with children to stay in Kelowna

On appeal, the father sought to admit evidence of a change in his financial situation. The Court of Appeal for British Columbia characterized this as “new” evidence because it did not exist at the time of trial. The Court admitted the evidence, finding that it undermined a primary underpinning of the trial decision, namely, the judge’s findings on the parties’ finances. The Court of Appeal concluded that the children’s best interests were served by staying in Kelowna.

Supreme Court examines test for admitting additional evidence on appeal

Justice Karakatsanis, writing for the majority, considered whether the father’s financial evidence should have been admitted on appeal.

Her Honour explained that appellate courts have the discretion to admit additional evidence to supplement the record on appeal and that they typically apply the four criteria set out in the case of Palmer, namely:

• the evidence could not, by the exercise of due diligence, have been obtained for the trial;
•  the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
• the evidence is credible in the sense that it is reasonably capable of belief; and
• the evidence is such that, if believed, it could have affected the result at trial.

Her Honour stated that the test strikes a balance between the principles of finality and reaching a just result. Importantly, her Honour held that the Palmer test applies to all evidence tendered on appeal for the purpose of reviewing the decision below, including where the evidence relates to facts that occurred after trial.

In the family law context, the admission of post-trial evidence may prolong uncertainty and be unnecessary

In the context of family law cases involving the best interests of the child, Justice Karakatsanis said that finality and order are particularly important:

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.

Furthermore, her Honour explained that the admission of post-trial evidence on appeal may be unnecessary because variation schemes allow judges to vary parenting orders where a change of circumstances justifies a review of a child’s best interests. There is already a legislative scheme that provides specific procedures for review. 

Court of Appeal erred in admitting the additional financial evidence

Justice Karakatsanis found that the father’s additional financial evidence could have been available for trial with due diligence. He could have taken reasonable steps to obtain financing before trial since he was aware that he needed to refinance to stay in the house. Her Honour explained that allowing the father to relitigate the same issues on the basis of more favourable facts was unfair and that the Court of Appeal erred in permitting this.

Supreme Court allows mother’s appeal paving way for relocation

Turning to the trial judge’s analysis of the mother’s application to relocate to Telkwa with the children, her Honour explained that the crucial question was whether relocation was in the best interests of the children, having regard to their physical, emotional and psychological safety, security and well-being.

Her Honour decided that the trial judge’s conclusion that relocation was in the children’s best interests was free from error. There were a range of factors supporting this conclusion, including the significant risk that the high-conflict nature of the parents’ relationship would impact the children if they stayed in Kelowna; the mother needed her family’s support to independently care for the children, which was only available in Telkwa; she was more willing to facilitate a positive relationship between the children and the father than the converse; and there were findings of family violence.

As a result, the Supreme Court allowed the mother’s appeal and restored the trial judge’s order giving the mother primary residence of the children. 

Contact NULaw in Toronto to Protect Your Parenting Time and Decision-Making Rights

Child relocation after separation or divorce is complex. It is often important to consider many issues, such as how your child will spend time with the other parent. We recommend consulting with the experienced family lawyers at NULaw in Toronto, so you can understand the legal process and the evidence that will assist you.

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of Ontario and Canadian family law issues and regularly provide honest and practical legal advice on these matters including custody and access. Contact us online or at 416-481-5604 to book a consultation.