The appellant mother was awarded primary residence of the children at trial and permitted to relocate approximately ten hours from the respondent father's residence.
The father successfully appealed to the British Columbia Court of Appeal, which admitted post-trial financial evidence under a test distinct from Palmer and used it to overturn the relocation order.
The Supreme Court of Canada allowed the appeal, holding that the Palmer test governs all additional evidence tendered on appeal for the purpose of reviewing the decision below, whether the evidence relates to events before or after trial.
The new evidence failed the Palmer due diligence criterion because it could have been available at trial with reasonable diligence, and its admission was not in the interests of justice given the availability of legislative variation procedures.
The trial judge's relocation analysis under Gordon v. Goertz was free from reviewable error, and the Court of Appeal wrongly intervened in the absence of a palpable and overriding error.
