Ashley Suzanne Barendregt Appellant v. Geoff Bradley Grebliunas, 2022 SCC 22

SUPREME COURT OF CANADA Citation: Barendregt v. Grebliunas, 2022 SCC 22 Appeal Heard: December 1 and 2, 2021 Judgment Rendered: December 2, 2021 Reasons for Judgment: May 20, 2022 Docket: 39533 Between: Ashley Suzanne Barendregt Appellant and Geoff Bradley Grebliunas Respondent - and - Office of the Children’s Lawyer, West Coast Legal Education and Action Fund Association and Rise Women’s Legal Centre Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 190) Karakatsanis J. (Wagner C.J. and Moldaver, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring) Reasons Dissenting in Part: (paras. 191 to 231) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Ashley Suzanne Barendregt Appellant v. Geoff Bradley Grebliunas Respondent and Office of the Children’s Lawyer, West Coast Legal Education and Action Fund Association and Rise Women’s Legal Centre Interveners Indexed as: Barendregt v. Grebliunas 2022 SCC 22 File No.: 39533. Appeal heard: December 1, 2, 2021. Judgment rendered: December 2, 2021. Reasons delivered: May 20, 2022.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for british columbia Family law — Custody — Change of residence — Best interests of child — Primary residence of children awarded to motherat trial, allowing children to relocate some ten hours away from father’s residence — Father successfully appealing relocation order —Whether trial judge erred in relocation analysis such that appellate intervention was warranted — Framework governing determinationas to whether relocation in child’s best interests.

Evidence — Additional evidence on appeal — Father appealing relocation order awarding primary residence of children tomother — Court of Appeal admitting new evidence adduced by father about financial situation — Whether Court of Appeal erred inadmitting new evidence — Test governing admission of additional evidence on appeal. The mother met the father in northern British Columbia in 2011, and followed him to Kelowna in 2012. Soon after, they gotmarried, bought a house, and had two boys. The home purchase proved to be a project, as significant money was needed to bring it intolivable condition.

When the relationship ended in 2018, the house remained an ongoing construction project. After the father assaultedthe mother during an argument, the mother brought the boys to her parents’ home in Telkwa, some 10 hours away from Kelowna. Aparenting arrangement emerged, splitting parenting time alternately between Telkwa and Kelowna, before it was agreed that the childrenwould remain in Kelowna with the father. The parents were to alternate weekly parenting time when the mother returned to Kelowna,which never occurred. Rather, the mother applied to the court to relocate the children to Telkwa.

She indicated that she was willing tomove to Kelowna if her application was unsuccessful, but the father was unwilling to move to Telkwa under any circumstances. The trial judge awarded primary residence of the children to the mother and allowed them to relocate to Telkwa. He foundthat two key issues favoured the move: the more significant issue was the parents’ acrimonious relationship and its implications for thechildren; and the less significant issue was the father’s financial situation, particularly with respect to his ability to make the Kelownahome habitable.

The father appealed and sought to adduce additional evidence about his finances and the renovations he had made to thehouse since trial. The Court of Appeal characterized this as “new” evidence because it had not existed at the time of trial. The courtapplied a different test than that set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759. In its view, Palmer — andin particular, the due diligence criterion — did not strictly govern the admission of new evidence on appeal.

The court then admitted theevidence on the basis that it undermined a primary underpinning of the trial decision and the assumptions that the father might not beable to remain in the Kelowna home had been displaced. As one of trial judge’s two main considerations no longer applied, the courtheld that relocation could no longer be justified. The court thus concluded that the children’s best interests were best served by staying inKelowna with both parents. Held (Côté J. dissenting in part): The appeal should be allowed.

Per Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ.: Regardless of whether theevidence relates to facts that occurred before or after trial, the test laid out in Palmer governs the admission of additional evidence onappeal when it is adduced for the purpose of reviewing the decision below. The Palmer test is sufficiently flexible to respond to anyunique concerns that arise with “new” evidence. The Court of Appeal erred by applying a different test and admitting the evidence onappeal.

The evidence did not satisfy the Palmer test because it could have been available for trial with the exercise of due diligence. In

any event, given the availability of a variation procedure designed to address any material change in circumstances, its admission was notin the interests of justice. Moreover, the trial judge did not err in his relocation analysis, which was consonant with the mobilityframework set out in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, as refined over the past two decades. His factualfindings and the weight he ascribed to factors bearing on the children’s best interests warranted deference on appeal. The Court ofAppeal was wrong to intervene.

Appellate courts have the discretion to admit additional evidence to supplement the record on appeal. When parties seek toadduce such evidence, the four criteria in Palmer typically apply: (

a) the evidence could not, by the exercise of due diligence, have beenavailable for the trial; (

b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (

c) the evidence is crediblein the sense that it is reasonably capable of belief; and (

d) the evidence is such that, if believed, it could have affected the result at trial.This framework applies when evidence is adduced on appeal for the purpose of asking the court to review the proceedings in the courtbelow. The test is purposive, fact-specific, and driven by an overarching concern for the interests of justice. It ensures that the admissionof additional evidence on appeal will be rare, such that the matters in issue between the parties narrow rather than expand as a caseproceeds up the appellate ladder.

The test strikes a balance between two foundational principles: finality and order in the justice system,and reaching a just result in the context of the proceedings. The first Palmer criterion — that the evidence could not, by the exercise of due diligence, have been available for the trial— focuses on the conduct of the party seeking to adduce the evidence. It requires litigants to take all reasonable steps to present theirbest case at trial, which ensures finality and order for the parties and the integrity of the judicial system.

On an individual level, theprinciple of finality speaks to the profound unfairness in providing a party the opportunity to make up for deficiencies in his or her caseat trial. On a systemic level, it preserves the distinction between the roles of trial and appellate courts: evaluating evidence and makingfactual findings are the responsibilities of trial judges, while appellate courts are designed to review trial decisions for errors. Theadmission of additional evidence on appeal blurs this critical distinction.

Accordingly, evidence that could, by the exercise of duediligence, have been available for trial should generally not be admitted on appeal. With respect to post-trial evidence, the reason whythe evidence was unavailable for trial may very well have its roots in the parties’ pre-trial conduct. Courts should accordingly considerwhether the party’s conduct could have influenced the timing of the fact they seek to prove. The last three Palmer criteria require courts to only admit evidence on appeal when it is relevant, credible, and could haveaffected the result at trial.

Unlike the due diligence criterion, which focuses on the conduct of the party, these three criteria focus on theevidence adduced and are conditions precedent to the evidence being adduced. Evidence that falls short of any of them cannot beadmitted on appeal. These criteria reflect the importance of reaching a just result in the context of the proceedings, a principle that isdirectly linked to the correctness of the trial decision and the truth-seeking function of the trial process.

In the family law context, evidence that does not satisfy the due diligence criterion should generally not be admitted on anappeal of a best interests of the child determination. Finality and order are particularly important in such cases. Children should beafforded the comfort of knowing, with some degree of certainty, where they will live and with whom. Certainty in a trial outcome canensure an end to a period of immense turmoil, strife, and costs; parties should do what they can to promote it.

Only in rare instancesshould an absence of due diligence be superseded by the interests of justice, such as in urgent matters requiring an immediate decision.This could also be the case where admitting the additional evidence does not offend the principle of finality despite the failure to meetthe due diligence criterion, such as where the appellate court has already identified a material error in the trial judgment below andfurther evidence may help determine an appropriate order. Such exceptional circumstances do not dispense with the other Palmercriteria.

Similarly, the best interests of the child cannot be routinely leveraged to ignore the due diligence criterion and admit additionalevidence on appeal. In family law cases, the admission of post-trial evidence on appeal may be unnecessary because legislative variationschemes permit a judge of first instance to vary a parenting order where a change of circumstances justifies a review of a child’s bestinterests.

The interest in reaching a just result can therefore be fostered through means other than an appeal and admission of post-trialevidence on appeal can therefore unnecessarily undermine finality and order in family law decisions. Courts must be wary of litigantsusing the Palmer framework to circumvent legislative schemes that provide specific procedures for review. An appeal is not anopportunity to avoid the evidentiary burden in a variation proceeding nor to seek a fresh determination after remedying gaps in a trialstrategy with the assistance of the trial judge’s reasons.

Consequently, in an appeal of a parenting order, courts should consider whether avariation application would be more appropriate in the circumstances. Where an application for additional evidence amounts to what isin substance a disguised application to vary, a court may refuse to admit additional evidence without considering the Palmer criteria.

The Court’s decision in Gordon sets out a two-stage inquiry for determining whether to vary a parenting order and permit acustodial parent to relocate with the child: first, the party seeking a variation must show a material change in the child’s circumstances;second, the judge must determine what order reflects the child’s best interests in the new circumstances. Although Gordon concerned avariation order, courts have also applied the framework when determining a parenting arrangement at first instance, with appropriatemodifications.

As the first stage of the Gordon inquiry will likely not raise a contentious issue in relocation cases, determining thechild’s best interests will often constitute the crucial question. For the past 25 years, case law has refined the Gordon framework. The 2019 amendments to the Divorce Act largelycodified these refinements. Where the Divorce Act departs from Gordon, the changes reflect the collective judicial experience ofapplying the Gordon factors.

While Gordon rejected a legal presumption in favour of either party, the Divorce Act now contains a burdenof proof where there is a pre-existing parenting order, award or agreement (s. 16.93). And although Gordon restricted whether courtscould consider a moving party’s reasons for relocating, this is now an express consideration in the best interests of the child analysis(s. 16.92(1)(a)). The new Divorce Act amendments also respond to issues identified in the case law over the past few decades.

The languagein s. 16(6) now expressly recognizes that the so-called maximum contact principle is only significant to the extent that it is in the child’sbest interests. This principle is better referred to as the parenting time factor, and must not be used to detract from the child-centric natureof the inquiry.

Section 16.92(2) provides that trial judges shall not consider a parent’s testimony that they would move with or withoutthe child, and ss. 16(3)(

j) and 16(4) instruct courts to consider any form of family violence and its impact on the perpetrator’s ability to

care for the child. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in thefamily violence to care for and meet the needs of the child. This consideration is especially important in mobility cases. In light of these refinements, the common law relocation framework can be restated as follows: courts must determinewhether relocation is in the best interests of the child, having regard to the child’s physical, emotional and psychological safety, securityand well-being.

This inquiry is highly fact-specific and discretionary, and the scope of appellate review is narrow. A court shall considerall factors related to the circumstances of the child, which may include the child’s views and preferences, the history of caregiving, anyincidents of family violence, or a child’s cultural, linguistic, religious and spiritual upbringing and heritage.

A court shall also considereach parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and give effect tothe principle that a child should have as much time with each parent, as is consistent with the best interests of the child. How theoutcome of an application would affect either parties’ relocation plans should not be considered.

In the instant case, there was a significant risk that the high-conflict nature of the parents’ relationship would impact thechildren if they stayed in Kelowna, and the mother needed her family’s support to care for the children, which was only available inTelkwa. Moreover, the mother was more willing to facilitate a positive relationship between the children and the father than theconverse, and there were findings of family violence. Accordingly, there was no reason to set aside the trial judge’s decision thatrelocation was in the children’s best interests.

Per Côté J. (dissenting in part): The appeal should be allowed in part. The new evidence should be admitted, and the appealshould be remanded to the trial court for reconsideration of the children’s best interests in light of the new evidence. There is agreement with the majority that the test laid out in Palmer governs, as it applies to both fresh and new evidence,yet there is disagreement with the majority’s application of Palmer to the facts of the appeal.

The Court of Appeal’s ultimate conclusionthat the evidence is admissible should be upheld, but its treatment of Palmer and its decision to reassess the best interests of the childrenshould be rejected. The Gordon framework is not properly before the Court, as the parties did not raise the issue. It should be left foranother day. The Palmer test must be applied flexibly in all cases involving the welfare of children. A child’s welfare is ongoing andfluid, and an accurate assessment of their current situation is of crucial importance on appeal.

Although the rules for admitting newevidence are not designed to permit litigants to retry their cases, the best interests of a child may provide a compelling reason to admitevidence on appeal. An application to vary may in some circumstances be the appropriate procedure, but it remains adversarial in nature;as such, it would also cause strains on the parties’ resources and delays. Narrowing Palmer’s flexibility to exceptional cases is unduly rigid and undermines the specificity needed in cases involvingchildren’s welfare.

Indeed, it would often deny judges the full context they need in order to make a sound determination of the bestinterests of the child in a particular case. Additionally, a rigid view of the Palmer criterion of due diligence focuses inordinately andnarrowly on the litigant’s conduct. The mere fact that new evidence could potentially have been obtained for the trial should not, on itsown, preclude an appellate court from reviewing information that bears directly upon the welfare of a child.

To be sure, a failure to meetthe due diligence criterion is not always fatal, as it is not a condition precedent to admission. When this occurs, it must be determinedwhether the strength of the other Palmer criteria is such that failure to satisfy the due diligence requirement is overborne. Appellate courts are not entitled to overturn trial court decisions simply because they would have made a different decisionor balanced the factors differently.

While the Court of Appeal was correct to admit the new evidence, it should not have used it as apretext to reweigh the trial judge’s findings regarding the relationship between the parties. Those findings were not affected by the newevidence and were entitled to appellate deference. In this case, the new evidence could have affected the result at trial, as it bore on a critical aspect of the trial judge’sreasoning. Finality, although important, should not tie the hands of a reviewing court so as to prevent it from crafting a remedy thatwould advance the best interests of the child.

The matter should be remitted to the trial judge because of his extensive knowledge of thefamily and the children. Any additional delay and expense resulting from the reconsideration of this matter is justified by the need toassess the best interests of the children in light of their father’s current circumstances. Cases Cited By Karakatsanis J. Applied: Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; Gordon v. Goertz, (SCC),[1996] 2 S.C.R. 27; referred to: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2S.C.R. 165; United States of America v.

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Borowski, 2010 ONSC 3833, 88 R.F.L. (6th) 140; Lawless v. Lawless, 2003 ABQB 800; Cameron v. Cameron,2003 MBQB 149, 41 R.F.L. (5th) 30; Abbott-Ewen v. Ewen, 2010 ONSC 2121, 86 R.F.L. (6th) 428; N.D.L. v. M.S.L., 2010 NSSC 68,289 N.S.R. (2d) 8; E.S.M. v. J.B.B., 2012 NSCA 80, 319 N.S.R. (2d) 232; Burns v. Burns, 2000 NSCA 1, 183 D.L.R. (4th) 66; L. (S.S.) v.W. (J.W.), 2010 BCCA 55, 316 D.L.R. (4th) 464; Orring v. Orring, 2006 BCCA 523, 276 D.L.R. (4th) 211; Larose v. Larose, 2002BCCA 366, 1 B.C.L.R. (4th) 262; H.S. v. C.S., 2006 SKCA 45, 279 Sask. R. 55; D.A.F. v. S.M.O., 2004 ABCA 261, 354 A.R. 387;Harnett v.

Clements, 2019 NLCA 53, 30 R.F.L. (8th) 49; C.M. v. R.L., 2013 NSFC 29; Pelech v. Pelech, (SCC), [1987]1 S.C.R. 801. By Côté J. (dissenting in part) Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; Gordon v. Goertz, (SCC), [1996] 2S.C.R. 27; Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165; T.G. v. NovaScotia (Minister of Community Services), 2012 NSCA 43, 316 N.S.R. (2d) 202; C.K.S. v. O.S.S., 2014 ABCA 416; Bacic v. Ivakic, 2017SKCA 23, 409 D.L.R. (4th) 571; P. (J.) v. P. (J.), 2016 SKCA 168, 89 R.F.L. (7th) 92; O. (A.) v.

E. (T.), 2016 SKCA 148, 88 R.F.L.(7th) 34; C.L.B. v. J.A.B., 2016 SKCA 101, 484 Sask. R. 228; Shortridge-Tsuchiya v. Tsuchiya, 2010 BCCA 61, 315 D.L.R. (4th) 498;Jiang v. Shi, 2017 BCCA 232; PT v. Alberta, 2019 ABCA 158, 88 Alta. L.R. (6th) 235; G (JD) v. G (SL), 2017 MBCA 117, [2018] 4W.W.R. 543; Babich v. Babich, 2020 SKCA 25; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; K.K. v. M.M., 2022 ONCA 72; Vande Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014; Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518. Statutes and Regulations Cited Children’s Law Act, S.P.E.I. 2020, c. 59, ss. 46 to 52.

Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 39.4. Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 2(1) “family violence” [am. 2019, c. 16, s. 1(7)], 16 [idem, s. 12], 16.92(1) [ad. idem,s. 12], (2) [idem], 16.93 [idem], 17(5) [am. idem, s. 13(2)], (5.2) [ad. idem], (9) [rep. idem, s. 13(4)], 35.3 [ad. idem, s. 34]. Family Law Act, S.B.C. 2011, c. 25, ss. 65 to 71. Family Law Act, S.N.B. 2020, c. 23, ss. 60 to 66. Parenting and Support Act, R.S.N.S. 1989, c. 160, ss. 18E to 18H. The Children’s Law Act, 2020, S.S. 2020, c. 2, ss. 13 to 17.

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Darius Bossé, Mark Power and Ryan Beaton, for the appellant. Georgialee A. Lang, for the respondent. Ian Ross, Caterina E. Tempesta and Samantha Wisnicki, for the intervener the Office of the Children’s Lawyer. Claire E. Hunter, Q.C., Kate Feeney, Kimberley Hawkins and Diana C. Sepúlveda, for the interveners the West Coast LegalEducation and Action Fund Association and the Rise Women’s Legal Centre. The reasons for judgment of Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. were delivered by Karakatsanis J. — I. Overview [1] An appeal is not a retrial.

Nor is it licence for an appellate court to review the evidence afresh. When appellatecourts stray beyond the proper bounds of review, finality and order in our system of justice is compromised. But not every trial decisioncan weather a dynamic and unpredictable future. Once it is rendered, lives go on and circumstances may change. When additionalevidence is put forward, how should appellate courts reconcile the need for finality and order in our legal system with the need fordecisions that reflect the just result in the proceedings before the court?

And conversely, what framework should guide trial judges whenthey determine whether relocation is in a child’s best interests, to ensure a just result that can navigate what lies ahead? This appeal raisesboth questions. [2] The Court must first determine the test that applies to the admission of additional evidence on appeal. The Court isasked to decide whether a legal distinction should be drawn between admitting “fresh evidence” (concerning events that occurred beforetrial) and “new evidence” (concerning events that occurred after trial). [3] In my view, the test in Palmer v.

The Queen, (SCC), [1980] 1 S.C.R. 759, applies whenever a partyseeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidencerelates to facts that occurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and orderin the administration of justice must yield in service of a just outcome.

The overarching consideration is the interests of justice, regardlessof when the evidence, or fact, came into existence. [4] In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible torecognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alterthe course of a child’s life.

At the same time, finality and order are critically important in family proceedings, and factual developmentsthat occur subsequent to trial are usually better addressed through variation procedures. [5] In this case, the Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of newevidence on appeal. Instead, it applied a different test and admitted the evidence. It erred in doing so. [6] In my view, the evidence did not satisfy the Palmer criteria. The respondent sought to overturn an unfavourable

trial outcome by adducing evidence on appeal that could have been available at first instance, had he acted with due diligence.Effectively, he was allowed to remedy the deficiencies in his trial evidence on appeal — with the benefit, and guidance, of the trialreasons. This gave rise to considerable unfairness. And in any event, evidence in family law appeals that is tendered for the purpose ofshowing a material change of circumstances is more appropriately raised at a variation hearing. Palmer should not be used to circumventa variation scheme that Parliament specifically designed to address such developments.

Admission of this evidence on appeal was not inthe interests of justice. [7] The second broad issue in this case relates to the legal framework for determining whether it is in a child’s bestinterests to allow a parent to relocate with the child, away from the other parent. It concerns the application of Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, as refined by the case law over the past two decades and viewed in light of the recentamendments of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). [8] Determining the best interests of the child is a heavy responsibility, with profound impacts on children, familiesand society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how tobest advance the needs and interests of the child. The challenge is even greater in mobility cases.

Geographic distance reduces flexibility,disrupts established patterns, and inevitably impacts the relationship between a parent and a child. The forward-looking nature ofrelocation cases requires judges to craft a disposition at a fixed point in time that is both sensitive to that child’s present circumstancesand can withstand the test of time and adversity. [9] The law relating to the best interests of the child has long emphasized the need for individualized and discretionarydecision making. But children also need predictability and certainty.

To balance these competing interests, the law provides a frameworkand factors to structure a judge’s discretion. This case calls on the Court to examine how some of those considerations apply in mobilitycases.

In particular, I clarify that a moving parent’s reasons for relocation and the “maximum contact factor” are relevant only to theextent they bear upon the best interests of the child; a parent’s testimony about whether they will move regardless of the outcome of therelocation application should not be considered; and family violence is a significant factor impacting the best interests of the child. [10] Here, the trial judge did not err in his conclusion that relocation was in the best interests of the children.

His factualfindings and the weight he ascribed to factors bearing on the children’s best interests warranted deference on appeal. In the absence ofany reviewable error, the Court of Appeal was wrong to intervene. [11] At the conclusion of the hearing, the Court (Côté J. dissenting in part) allowed the appeal and restored the trialjudge’s order, for reasons to follow. These are the reasons. II. Background [12] Ashley Barendregt, the mother, met Geoff Grebliunas, the father, in 2011 in the Bulkley Valley, in northern BritishColumbia. She followed him to Kelowna in 2012, where he had moved for a change of scenery.

Soon after, they got married. Theybought a house and had two boys, who were aged three and five at the time of trial in 2019. They shared parenting duties throughout themarriage. [13] The home purchase, already a burden on their modest finances, proved to be a project. An electrical fire shortly afterthey moved in exposed underlying problems — “rodents, water ingress, mould, and compromise of a structural floor joist” (2019 BCSC2192, 34 R.F.L. (8th) 331, at para. 6) — that the father, with his background in carpentry, pledged to repair. He tore out drywall,planning to proceed room by room. But progress was slow.

By trial, six years later, the house remained an “ongoing constructionproject” (trial reasons, at para. 5), with a makeshift kitchen and an only recently completed upstairs bathroom. The father’s own expertwitness described it as “a working environment, not a living environment”: para. 33. Significant money was needed to bring it tomarketable condition — funds the couple lacked, being well into six figures of debt by trial. [14] Their relationship ended in November 2018, when the father “likely” assaulted the mother during an argument.

Thatnight, she drove the 2 boys some 10 hours to her parents’ home in Telkwa, a village in the Bulkley Valley. The parenting arrangementthat emerged in the aftermath was formalized in an interim order, splitting parenting time between the parents, alternately in Telkwa andKelowna, before they agreed to keep the children in Kelowna with the father. When the mother returned to Kelowna, they were toalternate weekly parenting time. But she did not return.

A court order gave her parenting time with the boys in Telkwa in August 2019,but she had no further parenting time before the trial, which was held later that year. [15] The central issue at trial was whether the children should be relocated to Telkwa with the mother or remain inKelowna. She was willing to move to Kelowna if the father prevailed; he was unwilling to move to the Bulkley Valley under anycircumstances. [16] After a nine-day trial, the judge awarded primary residence of the children to the mother and allowed them torelocate to Telkwa. The father appealed and sought to adduce additional evidence.

The Court of Appeal admitted the evidence, set asidethe trial decision, and ordered the children to be returned to Kelowna. That decision was stayed pending appeal to this Court. III. Decisions Below A. Supreme Court of British Columbia, 2019 BCSC 2192, 34 R.F.L. (8th) 331 (Saunders J.) [17] The trial judge found that both parents played active parts in raising the children, and relocation to Telkwa wouldhave a significant impact on the children’s relationship with their father.

Two key issues, however, favoured the move. [18] The more significant issue was the parties’ acrimonious relationship and its implications for the children. Hedoubted they could collaborate to promote the children’s best interests. Their marriage had involved “possibly some degree of emotionalabuse”; the father had assaulted and emotionally traumatized the mother; and his conduct at trial was “abusive, and profoundlyoffensive”: para. 41. There was, he found, “compelling evidence of [the father’s] continuing animosity towards [the mother]”: para. 42.

[19] He concluded that granting the mother primary care of the children would be in their best interests. She was morelikely than the father to promote a positive attitude in the boys toward the other parent, and distancing the parents would help isolate thechildren from their discord. It was also unlikely that the parents could work cooperatively to promote the children’s best interests in ashared parenting structure in the near future.

The children would furthermore benefit indirectly from the mother living in Telkwa, whereshe had a stronger support network. [20] The “less significant” issue was the parties’ financial situation: para. 31. The house needed an influx of money tomake it habitable. The father said he would accelerate the renovations but had not prepared a budget for the ongoing work. His plan tolive in the house with the boys depended on his parents paying off the mortgage and line of credit, an arrangement they had yet toconfirm by trial.

The judge concluded that the father’s ability to remain in the house, or even in West Kelowna, was less than certain. [21] The trial judge concluded that relocation would best promote the children’s interests. He awarded the motherprimary residence and granted her application. B. Court of Appeal for British Columbia, 2021 BCCA 11, 45 B.C.L.R. (6th) 14 (Newbury, DeWitt-Van Oosten and Voith JJ.A.) [22] The appeal proceeded, and the hearing had nearly ended, when the father’s counsel informed the court that herclient’s financial situation had suddenly changed.

The father later elaborated in an affidavit: he had taken steps to purchase the mother’sinterest in the property; his parents had purchased a half interest in the home and had increased their personal line of credit to financerenovations; the three of them had refinanced the home, nearly halving the monthly mortgage payments; he had completed the bathroomand master bedroom; and a contractor had been hired to finish the kitchen. He sought to admit evidence of all of these developments inthe appeal. [23] Voith J.A., for the court, characterized this as “new” evidence because it had not existed at the time of trial.

As such,it was not subject to the Palmer test, and the due diligence criterion did not strictly govern its admission. Instead, “new evidence” couldbe admitted if it established “that a premise or underpinning or understanding of the trial judge that was significant or fundamental orpivotal has been undermined or altered”: para. 43. [24] The court admitted the evidence, finding that it undermined a primary underpinning of the trial decision, namely, thejudge’s findings on the parties’ finances.

Specifically, the father had done almost exactly what he had said he would; and the“assumption[s]” that he might not be able to remain in the family home and might not “possibly even [be] able to remain in WestKelowna” had been displaced: para. 57. One of trial judge’s two main considerations no longer applied. [25] And given this, the other consideration — the parties’ acrimonious relationship — could “no longer support theultimate result arrived at by the trial judge”: para. 69.

The mother’s need for emotional support could not justify relocation, even at thecost of “some friction between the parties”: paras. 74-75. And the trial judge should have considered whether the children could havestayed with their father in Kelowna. The court concluded that the children’s best interests were best served by staying in Kelowna withboth parents and ordered accordingly. IV. Issues [26] This appeal raises two broad issues: (

i) What test governs the admission of additional evidence on appeal, and did the Court of Appeal err in admitting theevidence in this case? (ii) Did the trial judge err in his relocation analysis, warranting appellate intervention? [27] In brief, I answer as follows. Regardless of whether the evidence relates to facts that occurred before or after trial,the Palmer test governs the admission of additional evidence on appeal when it is adduced for the purpose of reviewing the decisionbelow. The Court of Appeal erred by applying a different test and admitting the evidence on appeal.

The evidence did not satisfy thePalmer test because it could have been available for trial with the exercise of due diligence. In any event, given the availability of avariation procedure designed to address any material change in circumstances, its admission was not in the interests of justice. [28] Moreover, the trial judge did not err in his relocation analysis. His analysis of the best interests of the children isconsonant with the mobility framework set out in Gordon as refined over the past two decades.

His factual findings and the weight heascribed to factors bearing on the children’s best interests warranted deference on appeal. The Court of Appeal was wrong to intervene. V. Analysis A. The Test for Admitting Additional Evidence on Appeal [29] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal: CatholicChildren’s Aid Society of Metropolitan Toronto v. M. (C.), (SCC), [1994] 2 S.C.R. 165, at p. 188; United States ofAmerica v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, at para. 43. Whether in criminal or non-criminal matters (May v.

FerndaleInstitution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 107), courts have typically applied the four criteria set out by this Court inPalmer when parties seek to adduce evidence on appeal: (

i) the evidence could not, by the exercise of due diligence, have been obtained for the trial (provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases); (ii) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) the evidence is credible in the sense that it is reasonably capable of belief; and

(iv) the evidence is such that, if believed, it could have affected the result at trial. [30] Palmer applies when evidence is adduced on appeal “for the purpose of asking the court to review the proceedingsin the court below”: Shulman, at para. 44. Palmer does not, however, apply to evidence going to the validity of the trial process itself (R.v.

Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 76-77), nor to evidence adduced “as a basis for requesting an original remedy inthe Court of Appeal”, such as a stay of proceedings for an abuse of process (Shulman, at paras. 44-46). [31] The Palmer test is purposive, fact-specific, and driven by an overarching concern for the interests of justice. It ensuresthat the admission of additional evidence on appeal will be rare, such that the matters in issue between the parties should “narrow ratherthan expand as [a] case proceeds up the appellate ladder”: Public School Boards’ Assn. of Alberta v.

Alberta (Attorney General), 2000SCC 2, [2000] 1 S.C.R. 44, at para. 10. [32] The test strikes a balance between two foundational principles: (

i) finality and order in the justice system, and (ii)reaching a just result in the context of the proceedings. The first criterion seeks to preserve finality and order by excluding evidence thatcould have been considered by the court at first instance, had the party exercised due diligence. This protects certainty in the judicialprocess and fairness to the other party.

The remaining criteria — that the evidence be relevant, credible and could have affected theoutcome — are concerned with reaching a just result. [33] While the interest in the finality of a trial decision and order in the justice system must sometimes give way to reacha just result, as I will explain, a proper application of Palmer reflects and safeguards both principles, as well as fairness to the parties. [34] For the reasons that follow, I conclude that the Palmer test applies to all evidence tendered on appeal for the purposeof reviewing the decision below.

In my view, the Palmer test ensures the proper balance and is sufficiently flexible to respond to anyunique concerns that arise when considering whether to admit evidence regarding facts or events that occurred after the trial. [35] My analysis proceeds as follows. First, I discuss the four Palmer criteria. Second, I address the unique challengesthat arise when litigants seek to adduce “new” evidence. Third, I consider how Palmer applies in the family law context. Finally, Iaddress the use of properly admitted evidence, before turning to the merits of the fresh evidence motion in this case.

(1) The Palmer Criteria (

a) Due Diligence [36] Functionally, the first Palmer criterion — that the evidence could not, by the exercise of due diligence, have beenobtained for the trial — focuses on the conduct of the party seeking to adduce the evidence. It requires litigants to take all reasonablesteps to present their best case at trial. This ensures finality and order in the judicial process: R. v. St-Cloud, 2015 SCC 27, [2015] 2S.C.R. 328, at para. 130; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 19; R. v.

Angelillo, 2006 SCC 55, [2006] 2 S.C.R.728, at para. 15. [37] The relationship between due diligence, and finality and order are deeply rooted in our common law. The lawgenerally “requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so”:Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 18.

This animates, for example, the cause of actionestoppel doctrine, which safeguards “the interest of an individual in being protected from repeated suits and prosecutions for the samecause” and “the finality and conclusiveness of judicial decisions”: K. R. Handley, Spencer Bower and Handley: Res Judicata (4th ed.2009), at pp. 3-4.

This doctrine achieves these ends through a due diligence component: it precludes a party from bringing an actionagainst another party where the basis of the cause of action was argued or could have been argued in the prior action if the party inquestion had exercised reasonable diligence (Grandview (Town of) v. Doering, (SCC), [1976] 2 S.C.R. 621, at pp. 634-38, citing Henderson v.

Henderson (1843), 3 Hare 100). [38] The Palmer test’s due diligence criterion plays a similar role: it ensures that litigants put their best foot forwardwhen first called upon to do so. [39] The principle of finality and order has both individual and systemic dimensions in this setting. On an individual level,it speaks to the profound unfairness in providing “a party the opportunity to make up for deficiencies in [their] case at trial”: Stav v. Stav,2012 BCCA 154, 31 B.C.L.R. (5th) 302, at para. 32. A party who has not acted with due diligence should not be afforded a “second kickat the can”: S.F.D. v.

M.T., 2019 NBCA 62, 49 C.C.P.B. (2nd) 177, at para. 24. And the opposing party is entitled to certainty andgenerally should not have to relitigate an issue decided at first instance, absent a reviewable error. Otherwise, the opposing party mustendure additional delay and expense to answer a new case on appeal.

Permitting a party in an appeal to fill the gaps in their trial evidencebased on the failings identified by the trial judge is fundamentally unfair to the other litigant in an adversarial proceeding. [40] On a systemic level, this principle preserves the distinction between the roles of trial and appellate courts. Evaluatingevidence and making factual findings are the responsibilities of trial judges. Appellate courts, by contrast, are designed to review trialdecisions for errors.

The admission of additional evidence on appeal blurs this critical distinction by permitting litigants to effectivelyextend trial proceedings into the appellate arena. [41] By requiring litigants to call all evidence necessary to present their best case at first instance, the due diligencecriterion protects this distinction. This, in turn, sustains the proper functioning of our judicial architecture (R. v. Sipos, 2014 SCC 47,[2014] 2 S.C.R. 423, at para. 30), and ensures the efficient and effective use of judicial resources (see Housen v.

Nikolaisen, 2002 SCC33, [2002] 2 S.C.R. 235, at para. 16). [42] The importance of the due diligence criterion may vary, however, depending on the proposed use of the evidence.Evidence sought to be adduced as a basis for intervention — to demonstrate the first instance decision was wrong — raises greaterconcerns for finality and order than evidence that may help determine an appropriate order after the court has found a material error.Since appellate intervention is justified on the basis of a reviewable error in the decision below, there is less concern for finality and

order. Accordingly, in such cases, the due diligence criterion has less bearing on the interests of justice. [43] In sum, the due diligence criterion safeguards the importance of finality and order for the parties and the integrity ofthe judicial system. The focus at this stage of Palmer is on the conduct of the party. This is why evidence that could, by the exercise ofdue diligence, have been available for trial should generally not be admitted on appeal. (

b) The Criteria That the Evidence Be Relevant, Credible and Could Have Affected the Result [44] The last three Palmer criteria require courts to only admit evidence on appeal when it is relevant, credible, and couldhave affected the result at trial. Unlike the first criterion, which focuses on the conduct of the party, these three criteria focus on theevidence adduced. And unlike due diligence, the latter three criteria are “conditions precedent” — evidence that falls short of themcannot be admitted on appeal: R. v.

Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 14. [45] These criteria reflect the other principle that animates the Palmer test: the importance of reaching a just result in thecontext of the proceedings (Sipos, at paras. 30-31; R. v. Warsing, (SCC), [1998] 3 S.C.R. 579, at para. 56). Thisprinciple is directly linked to the correctness of the trial decision and the truth-seeking function of our trial process. Evidence that isunreliable, not credible, or not probative of the issues in dispute may hinder, rather than facilitate, the search for the truth. And as Cory J.observed in R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, at para. 13, “[t]he ultimate aim of any trial, criminal or civil,must be to seek and to ascertain the truth.” [46] After a court has decided to admit evidence on appeal, it should remain mindful that the evidence has not been put tothe test of cross-examination or rebuttal at trial, and the adverse party may not have had the ability to verify its accuracy: Lévesque, atpara. 25.

If the evidence is challenged or its probative value is in dispute, appellate courts may, among other things, provide theopposing party an opportunity to respond, allow cross-examination of a witness, permit the submission of expert evidence in response toadditional expert evidence, or remit the matter to the court of first instance: Lévesque, at para. 25; see also Child and Family Services ofWinnipeg v. J.M.F., 2000 MBCA 145, 153 Man. R. (2d) 90, at para. 27; Children’s Aid Society of Windsor-Essex (County) v. B. (Y.)(2004), (ON CA), 5 R.F.L. (6th) 269 (Ont. C.A.), at paras. 12 and 19. (

c) Palmer Resolves the Tension Between the Need for Finality and Order, and the Interest in Reaching a Just Result [47] The Palmer test reconciles the tension between these two foundational principles — the need for finality and order,and the interest in reaching a just result — to determine the interests of justice in the circumstances of each case: Sipos, at para. 31. It isagainst this backdrop that I address whether the Palmer test applies to what has been called “new” evidence (more accurately referred toas evidence of facts or events that occurred after trial).

(2) The Palmer Test Applies to Evidence of Facts that Arise After Trial [48] The primary issue in this appeal is whether and how the Palmer test applies to “new” evidence. According to theCourt of Appeal, evidence is “new” if it pertains to facts that occurred after trial; “fresh” evidence pertains to facts that occurred beforetrial, but which, for one reason or another, could not be put before the court. [49] Appellate courts across the country have differed in their approaches to “new” evidence. Some have applied thePalmer criteria (J.W.S. v.

C.J.S., 2019 ABCA 153, at para. 37 ; Sheikh (Re), 2019 ONCA 692, at para. 7 ; Riel v. Riel,2017 SKCA 74, 99 R.F.L. (7th) 367, at para. 16; Hellberg v. Netherclift, 2017 BCCA 363, 2 B.C.L.R. (6th) 126, at paras. 53-54), whileothers have applied a different or modified test (North Vancouver (District) v. Lunde (1998), (BC CA), 60 B.C.L.R.(3d) 201 (C.A.), at paras. 25-26; Jens v. Jens, 2008 BCCA 392, 300 D.L.R. (4th) 136, at paras. 24-29; Dickson v. Vuntut Gwitchin FirstNation, 2021 YKCA 5, at paras. 159-61 and 166 ; Miller v. White, 2018 PECA 11, 10 R.F.L. (8th) 251, at para. 19; Beauchampv.

Beauchamp, 2021 SKCA 148, at para. 36 ). [50] This dissonance in the jurisprudence reflects two apparent paradoxes that arise in applying the first and fourthPalmer criteria to “new” evidence. Courts have queried whether new evidence could ever fail the due diligence criterion, since it relatesto facts not yet in existence at the time of trial: see Cory v. Marsh (1993), (BC CA), 77 B.C.L.R. (2d) 248 (C.A.), atparas. 21 and 28-29; J.M.F., at para. 21. Others have asked how such evidence could possibly have affected a trial outcome that itpostdated: North Vancouver (District), at para. 25; Radcliff v.

Radcliff (2000), (ON CA), 7 R.F.L. (5th) 425 (Ont.C.A.), at para. 10; Sengmueller v. Sengmueller (1994), (ON CA), 17 O.R. (3d) 208 (C.A.), at p. 211. [51] In the face of conflicting British Columbia case law, the Court of Appeal concluded that the Palmer test only appliesto fresh evidence, and the due diligence criterion did not strictly govern the admission of new evidence.

It outlined the following test: . . . depending on the circumstances, new evidence may be admitted if it establishes that a premise or underpinning or understandingof the trial judge that was significant or fundamental or pivotal has been undermined or altered. [para. 43] [52] The mother takes issue with the Court of Appeal’s approach: she submits that the Palmer criteria apply to both freshand new evidence.

The father argues that the test applied below was appropriate because the new evidence “falsified” the trial decision. [53] I conclude that the Court of Appeal erred by applying a different test to “new” evidence. [54] Applying a different test for admitting new evidence — which dispensed with the due diligence criterion — failed tosafeguard the delicate balance between finality and order, and the interest in a just result. It is also inconsistent with this Court’s Palmerjurisprudence.

Indeed, this Court has consistently applied Palmer to evidence pertaining to events that occurred between the trial andappeal: see, for example, Catholic Children’s Aid Society, at p. 188; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 50-51;Sipos, at paras. 29-30. The evidence in Palmer concerned facts that occurred both before and after trial and thus included both “fresh”and “new” evidence.

The additional evidence included sworn declarations made by one of the key trial witnesses who recanted histestimony after trial, declaring that the RCMP promised him money before trial and made the payment after trial.

[ 55 ] The Palmer test is sufficiently flexible to deal with both types of evidence. As I will explain, the core inquiries under all four criteria remain the same regardless of when the evidence, or the specific fact, came into existence. Because the same test applies, it is unnecessary to distinguish between “fresh” and “new” evidence. Palmer applies to the admission of all additional evidence tendered on appeal for the purpose of reviewing the decision below. (

a) The Due Diligence Criterion [ 56 ] A common thread running through the parties’ submissions and the Court of Appeal’s decision is that conceptual difficulties arise when applying the due diligence criterion to evidence about facts arising after trial. The mother accepts that due diligence should be eased in instances where it was impossible to adduce the evidence at trial. For the father, it is “by definition . . . not an appropriate consideration” in such cases: R.F., at para. 75.

Similarly, the Court of Appeal decided that the due diligence criterion does not strictly govern the admission of new evidence. [ 57 ] But under such a formalistic approach, the timing of events — and not the litigant’s conduct — would dictate the application of the due diligence criterion. For events occurring subsequently, the criterion would effectively be eliminated. This would run counter to our jurisprudence, ignore the litigant’s conduct and would fail to safeguard finality and order within the Palmer test. That is precisely what happened in this case.

Focusing exclusively on whether the decision would be different gives undue weight to the interest in reaching a just result — and distorts the delicate balance that the Palmer test seeks to maintain. [ 58 ] The due diligence criterion is sufficiently flexible to adapt to any unique concerns raised by evidence of facts that occurred subsequent to trial. As this Court held in Bent v.

Platnick , 2020 SCC 23 , at para. 60 , the due diligence criterion is not a rigid one and has been held to be a practical concept that is context-sensitive. [ 59 ] Ultimately, this criterion seeks to determine whether the party could — with due diligence — have acted in a way that would have rendered the evidence available for trial. The due diligence inquiry should focus on the conduct of the party seeking to adduce such evidence rather than on the evidence itself.

And in doing so, a court should determine, quite simply, why the evidence was not available at the trial: G.D.B. , at para. 20 . [ 60 ] The reason why “new” evidence was unavailable for trial may have its roots in the parties’ pre-trial conduct. For facts arising after trial, courts should consider whether the party’s conduct could have influenced the timing of the fact they seek to prove. Consider this case. If finances are at issue and a party does not take steps to obtain a financing commitment until after trial, the court may ask why the evidence could not have been obtained for trial.

Parties cannot benefit from their own inaction when the existence of those facts was partially or entirely within their control. Again, litigants must put their best foot forward at trial. In the end, what matters is that this criterion properly safeguards finality and order in our judicial process. [ 61 ] In sum, the focus of the due diligence criterion is on the litigant’s conduct in the particular context of the case.

Considering whether the evidence could have been available for trial with the exercise of due diligence is tantamount to the requirement that the evidence could not, with the exercise of due diligence, have been obtained for trial. Where a party seeks to adduce additional evidence on appeal, yet failed to act with due diligence, the Palmer test will generally foreclose admission. (

b) The Other Palmer Criteria [ 62 ] There is no suggestion by the parties that the remaining Palmer criteria should operate differently depending on when the fact the evidence seeks to prove occurred. Needless to say, the evidence must be relevant and credible regardless of when it arose. The interest in reaching a just result requires nothing less. [ 63 ] As for the fourth factor — whether the evidence, if believed, could have affected the result at trial — the logic remains the same: a court must approach this criterion purposively.

While it is tempting to conclude that evidence of facts arising after trial could never have affected the result at trial, the inquiry is not so narrow. The question is not the evidence’s timing but whether the evidence is sufficiently probative of the trial issues, had it been available.

An overly formalistic approach at this stage ignores the underlying rationale of the Palmer criteria — here, the interest in reaching a just result in the context of the proceedings. [ 64 ] As noted in Palmer , at p. 776, the fourth criterion will be satisfied if the evidence, assuming it was presented to the trier of fact and believed, possesses such strength or probative force that it might, taken with the other evidence adduced, have affected the result.

(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 ofcertainty, where they will live and with whom. And unfortunately, an appeal only prolongs the cloud of uncertainty and the hardship andstress 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 inMoge v. Moge, (SCC), [1992] 3 S.C.R. 813, family litigants, particularly women, are often already shouldering theeconomic consequences of a marital breakdown. Some will be unable to afford the financial and emotional cost of court proceedings atfirst instance, let alone the strain of relitigating the facts on appeal.

Needlessly prolonging this adversarial process does little to assistparties 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 dowhat they can to promote it.

Evidence that does not satisfy the due diligence criterion should therefore generally not be admitted, even onan 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’sAid Society of Halton (Region) v. A. (K.L.) (2006), (ON CA), 32 R.F.L. (6th) 7 (Ont. C.A.), at para. 56.

There maybe 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 — apressing medical or other issue bearing on the child’s best interests — it may not serve the interests of justice to require a party to showdue 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 tomeet the due diligence criterion.

For instance, where the appellate court has already identified a material error in the trial judgmentbelow, evidence that may help determine an appropriate order — whether to show the need for a new trial, support a substitute order, orotherwise — may exceptionally warrant admission: Children’s Aid Society of Halton (Region), at paras. 27 and 52-56; Children’s AidSociety of Toronto v. P. (D.) (2005), (ON CA), 19 R.F.L. (6th) 267 (Ont. C.A.), at paras. 8-9. This may promotetimely 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 mustbe relevant, credible, and have some material bearing on the outcome. Similarly, the best interests of the child cannot be routinelyleveraged 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 thecontext of the proceedings. In such circumstances, the interests of justice may demand additional evidence to be admitted on appeal. (

b) The Existence of Variation Schemes That Address Factual Developments That Postdate Trial in Parenting Cases [73] Turning to the second feature that arises in the family law context, the admission of post-trial evidence on appealmay be unnecessary because, unlike decisions that award damages in one final order, litigation about ongoing parenting arrangementsremains subject to court oversight. Specifically, variation schemes permit a judge of first instance to vary a parenting order where achange of circumstances justifies a review of a child’s best interests.

As I will explain, the admission of post-trial evidence on appealunnecessarily undercuts both finality and order in family law judgments, as well as Parliament’s statutory design. [74] Because variation procedures are available in parenting cases to address changes arising post-trial, the interest inreaching a just result can be fostered through other means.

The admission of post-trial evidence on appeal therefore unnecessarilyundermines finality and order in family law decisions. [75] Moreover, courts must be wary of permitting parties to use the Palmer framework to circumvent legislative schemesthat provide specific procedures for review. An appeal cannot serve as an indirect route of varying the original parenting order.

Avariation application and an appeal are distinct proceedings based on fundamentally different premises. [76] In a variation proceeding, “[t]he court cannot retry the case, substituting its discretion for that of the original judge;it must assume the correctness of the decision”: Gordon, at para. 11. The applicant bears the burden of proving that a child’s bestinterests differ from those determined in the original decision because the circumstances on which that decision was based havematerially changed since trial.

Once an applicant discharges this burden, the assessment is prospective: a variation judge must enter intoa fresh inquiry to determine where the best interests of the child lie, considering the findings of fact of the judge who made the previousorder, together with the evidence of new circumstances (Gordon, at para. 17). Finality in this context respects the trial judge’s originaldetermination of the child’s best interests: Gordon, at para. 17; Willick v.

Willick, (SCC), [1994] 3 S.C.R. 670, at p. 688,per Sopinka J. [77] An appeal, in contrast, is designed to determine whether there is an error in the trial decision. In other words, thecorrectness of the previous decision — and not the implications of subsequent events — is the focal point in an appeal. This assessmentis inherently retrospective, with the review typically circumscribed within the four corners of the judgment below.

Here, finality in theoriginal decision is preserved unless the court identifies a material error. [78] It is essential that variation procedures and appeals remain distinct in the family law context: holding otherwisewould unfairly require the opposing party to defend the original order — absent a material error — in the wrong forum, with appellatejudges effectively performing the work assigned to first instance judges in variation procedures.

This would displace the correctivefunction of appellate courts and allow litigants to circumvent Parliament’s variation scheme. [79] Litigants must not be permitted to game the system in this way: an appeal is not an opportunity to avoid theevidentiary burden in a variation proceeding; nor is it an opportunity to seek a fresh determination, after remedying gaps in a trial strategy

with the assistance of the trial judge’s “preliminary” reasons. Such a tactical approach in family cases will often be at the expense of the children. [ 80 ] Consequently, in an appeal of a parenting order, courts should consider whether a variation application would be more appropriate in the circumstances. Where an application for additional evidence amounts to what is “in substance a disguised application to vary” ( Riel , at para. 20 ), a court may refuse to admit additional evidence without considering the Palmer criteria.

(4) The Use of Properly Admitted Evidence on Appeal [ 81 ] As a final observation, even when evidence is properly admitted on appeal, appellate courts must defer to the trial judge’s factual findings that are unaffected by the additional evidence. While assessing the proper outcome in light of additional evidence may require a global consideration of the case ( St-Cloud ; Gordon ), appellate courts are not entitled to reweigh or disregard the trial judge’s underlying factual findings absent palpable and overriding error.

(5) Did the Court of Appeal Err in Admitting the Additional Evidence? [ 82 ] In this case, the Court of Appeal erred in admitting the father’s evidence on appeal. It applied the wrong test and failed to consider whether the father exercised due diligence. The evidence could have been available for trial with due diligence. And in any event, this matter could have been dealt with solely on the basis that a fresh evidence motion was not in the interests of justice given the availability of a variation procedure. [ 83 ] The father sought to adduce an affidavit at the conclusion of the appeal hearing.

He deposed that he had taken steps to pay the mother her interest in the family property “to comply with the order of the trial judge”: C.A. reasons, at para. 27. He also deposed that he refinanced the home and his parents increased their personal line of credit, which went towards renovations that had been partially completed. [ 84 ] The father argues that the evidence addressed the trial judge’s concerns that because of their financial position, his ability to remain in the family home, or even in West Kelowna, was “less than certain”: see R.F., at para. 5; see also trial reasons, at para. 40.

These preoccupations, he says, are now “demonstrably incorrect”: R.F., at para. 31. [ 85 ] In a similar vein, the Court of Appeal admitted the evidence because it was “cogent and material”, and it “directly addresse[d] one of the two primary underpinnings of the trial decision” (para. 51), since the trial judge’s “concern, or expectation, or ‘assumption’” regarding the father’s ability to remain in the family home “ha[d] been displaced” (para. 57). [ 86 ] The trial judge’s predictions about the state of the father’s finances and his ability to remain at his residence, however, should not be mischaracterized.

It was open to the trial judge to make an assessment about the future and make a finding of fact based on the evidence before him. Here, the fact that the father later moved to cure evidentiary deficiencies regarding his ability to finance and renovate the home does not mean that the trial judge erred in his findings or conclusions. [ 87 ] More to the point, the father failed to act with due diligence. Most obviously, the facts he now seeks to prove and rely upon on appeal — that he had the necessary financing to keep his home and make it habitable for the children — were squarely at issue before the trial judge.

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: trial reasons, at para. 35. His plan was contingent on obtaining financing from his father, whose testimony was “less definite” (para. 36): Mr. Grebliunas Sr. has no commitment letters regarding financing.

Asked whether he was prepared to offer any more than the amount of the debt, he hedged, saying “We’ll see what the final number is”, and offered his opinion that the property would be “a good investment”. [Emphasis added; para. 38.] As the trial judge concluded, the practicability of that arrangement remained “an open question”: para. 39. [ 88 ] Allowing the father to resolve these concerns and redraw the factual landscape at the eleventh hour of the appeal occasioned considerable unfairness.

In effect, he was allowed to relitigate the same issues on the basis of more favourable facts, displacing the corrective function of the appellate court. Nothing on the record indicates that he was prevented from obtaining the financing commitments before trial. This ran firmly against the interest in finality and order that due diligence is meant to safeguard. [ 89 ] Further, as noted above, an alternative legislative mechanism for varying the trial order was available to deal with any material changes of circumstances arising after trial: Divorce Act , s. 17(5) ; Gordon , at para. 10 .

By successfully adducing the additional evidence, the father was able to circumvent the burden he would have faced in a variation application — that is, proving a change of circumstances from those that justified the children’s relocation to Telkwa. Instead, he received what amounted to a near fresh evaluation of the children’s best interests. [ 90 ] A flexible approach to Palmer in cases involving the welfare of children must not permit what is “in substance a disguised application to vary”: Riel , at para. 20 .

And as stated above, courts should be mindful of not permitting parties to use the Palmer framework to circumvent and undermine parliamentary schemes that provide specific procedures for review or variation upon shifts in the factual landscape. [ 91 ] There are no circumstances here that render the admission of this evidence necessary in the interests of justice. The Court of Appeal erred in admitting the additional evidence on appeal. B.

The Framework Governing Relocation Cases [ 92 ] I turn now to the second question in this appeal: whether the trial judge erred in his analysis of the mother’s application to relocate to Telkwa with the children.

[93] The father argues that the trial judge erred in his application of the common law framework that governs relocationapplications, and that this framework should be updated.

He raises concerns regarding the trial judge’s application of Gordon to theparties’ shared parenting arrangement; his treatment of the “maximum contact principle”; the weight he afforded to the mother’s reasonsfor moving; his neglect of the mother’s testimony that she would stay in Kelowna and co-parent if her application failed; and the impactof family violence and discord between the parties on his analysis: R.F., at paras. 24-29, 33-37, 67 and 84-88. [94] These submissions all bring into focus how case law across the country has refined and supplemented the Gordonframework for over 25 years.

Indeed, the Gordon framework is flexible by design; it is not an unyielding set of rules. And with decadesof Gordon jurisprudence as a guide, the federal government and many provinces have now enacted statutory relocation regimes thatlargely reflect the judicial experience evinced in the case law. As I will explain, this jurisprudential and legislative lineage provides aclear framework for all family arrangements going forward. The trial judge’s assessment of the best interests of the child is consistentwith this refined framework.

It was free from material error and entitled to deference on appeal. [95] My reasons proceed as follows. First, I touch on the best interests of the child and the unique nature of mobilitycases. Second, I underline the importance of deference in cases involving parenting issues. Third, I set out the refined Gordon frameworkin light of jurisprudential and legislative refinements that have occurred over the past two decades. Finally, I turn to the specific issuesraised in this case: whether the trial judge erred in his application of the Gordon framework.

(1) The Best Interests of the Child [96] The best interests of the child are an important legal principle in our justice system: Canadian Foundation forChildren, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 9. It is a staple in domesticstatutes, international law, and the common law: see, for example, Divorce Act, s. 16; Convention on the Rights of the Child,Can. T.S. 1992 No. 3, art. 3(1); Gordon; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817; A.C. v.

Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181; Kanthasamy v. Canada(Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909. [97] But, even with a wealth of jurisprudence as guidance, determining what is “best” for a child is never an easy task.The inquiry is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: CanadianFoundation for Children, Youth and the Law, at para. 11; Gordon, at p

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