Supreme Court of Canada

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.

Parties

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

on appeal from the court of appeal for british columbia

Headnotes

Family law — Custody — Change of residence — Best interests of child — Primary residence of children awarded to mother at 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 determination as to whether relocation in child's best interests.

Evidence — Additional evidence on appeal — Father appealing relocation order awarding primary residence of children to mother — Court of Appeal admitting new evidence adduced by father about financial developments that occurred after trial — Whether Palmer test governs admission of additional evidence on appeal regardless of whether evidence relates to pre-trial or post-trial events — Whether evidence admissible — Palmer v. The Queen, [1980] 1 S.C.R. 759.

Summary

The mother met the father in northern British Columbia in 2011, and followed him to Kelowna in 2012. Soon after, they got married, bought a house, and had two boys. The home purchase proved to be a project. An electrical fire shortly after they moved in exposed underlying problems. Their relationship ended in November 2018, when the father "likely" assaulted the mother. She drove to her parents' home in Telkwa, a village in the Bulkley Valley.

The trial judge awarded primary residence of the children to the mother and allowed them to relocate to Telkwa. He found that two key issues favoured the move: the more significant issue was the parties' acrimonious relationship and its implications for the children; the less significant issue was the parties' financial situation and the uncertain state of the family home. The father appealed and sought to adduce additional evidence about improvements to his financial situation. The Court of Appeal admitted the evidence, set aside the trial decision, and ordered the children returned to Kelowna.

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 the evidence relates to facts that occurred before or after trial, the test laid out in Palmer v. The Queen governs the admission of additional evidence on appeal when tendered for the purpose of reviewing the decision below. The overarching consideration is the interests of justice. The Palmer test is purposive, fact-specific, and driven by an overarching concern for the interests of justice.

Appellate courts have the discretion to admit additional evidence to supplement the record on appeal. When parties seek to adduce such evidence, the four criteria in Palmer typically apply: (a) the evidence could not, by the exercise of due diligence, have been obtained for the trial; (b) the evidence is relevant; (c) the evidence is credible; and (d) the evidence is such that, if believed, it could have affected the result at trial.

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 their best case at trial.

The last three Palmer criteria require courts to only admit evidence on appeal when it is relevant, credible, and could have affected the result at trial. Unlike the due diligence criterion, which focuses on the conduct of the party, these three criteria focus on the evidence adduced and are "conditions precedent" — evidence that falls short of them cannot be admitted on appeal.

In the family law context, evidence that does not satisfy the due diligence criterion should generally not be admitted on an appeal of a best interests of the child determination. Finality and order are critically important in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.

In family law cases, the admission of post-trial evidence on appeal may be unnecessary because legislative variation schemes permit a judge of first instance to vary a parenting order where a change of circumstances has occurred. A variation application and an appeal are distinct proceedings based on fundamentally different grounds. An appeal reviews the decision below for reviewable legal error; it is not a mechanism to introduce a material change of circumstances.

The Court's decision in Gordon sets out a two-stage inquiry for determining whether to vary a parenting order and permit a custodial parent to relocate with the child: first, the party seeking a variation must establish a material change in circumstances; and second, the court must determine what order is in the child's best interests.

For the past 25 years, case law has refined the Gordon framework. The 2019 amendments to the Divorce Act largely codified these refinements. Where the Divorce Act departs from Gordon, the changes govern. The new amendments also respond to issues identified in the case law. The language in s. 16(6) now expressly recognizes that the so-called maximum contact principle is not an independent factor but one component of the best interests analysis.

In light of these refinements, the common law relocation framework can be restated as follows: courts must determine whether relocation is in the best interests of the child, having regard to the circumstances of each case. A moving parent's reasons for relocation are relevant only to the extent they bear upon the child's best interests. A parent's testimony about whether they will move regardless of the outcome should not be considered. Family violence is a significant factor.

In the instant case, there was a significant risk that the high-conflict nature of the parents' relationship would impact the children if they stayed in Kelowna, and the mother needed her family's support to independently care for the children, which was only available in Telkwa. The trial judge did not err. The Court of Appeal was wrong to intervene.

Per Côté J. (dissenting in part): The appeal should be allowed in part. The new evidence should be admitted, and the appeal should be remanded to the trial court for reconsideration of the children's best interests in light of that 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 this case.

The Palmer test must be applied flexibly in all cases involving the welfare of children. A child's welfare is ongoing and fluid, and an accurate assessment of their current situation is of crucial importance. Narrowing Palmer's flexibility to exceptional cases is unduly rigid and undermines the specificity needed in cases involving children's welfare. In this case, the new evidence could have affected the result at trial, as it bore on a critical aspect of the trial judge's reasoning. The Court of Appeal was correct to admit the evidence but should have remanded the matter to the trial court rather than making its own determination.

Cases Cited

By Karakatsanis J.

Applied: Palmer v. The Queen, [1980] 1 S.C.R. 759; Gordon v. Goertz, [1996] 2 S.C.R. 27; referred to: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307; Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Grandview (Town of) v. Doering, [1976] 2 S.C.R. 621; R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487; R. v. Warsing, [1998] 3 S.C.R. 579; R. v. Nikolovski, [1996] 3 S.C.R. 1197; Hickey v. Hickey, [1999] 2 S.C.R. 518; Willick v. Willick, [1994] 3 S.C.R. 670; Pelech v. Pelech, [1987] 1 S.C.R. 801.

By Côté J. (dissenting in part)

Palmer v. The Queen, [1980] 1 S.C.R. 759; Gordon v. Goertz, [1996] 2 S.C.R. 27; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165; T.G. v. Nova Scotia (Minister of Community Services), 2021 NSCA 60; Hickey v. Hickey, [1999] 2 S.C.R. 518.

Statutes and Regulations Cited

Children's Law Act, 2020, 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.

Treaties and Other International Instruments

Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art. 3(1).

Authors Cited

Artz, Sibylle, et al. "A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth" (2014), 5 I.J.C.Y.F.S. 493.

Bailey, Allen M. "Prioritizing Child Safety as the Prime Best‑Interest Factor" (2013), 47 Fam. L.Q. 35.

Bala, Nicholas. "Bill C‑78: The 2020 Reforms to the Parenting Provisions of Canada's Divorce Act" (2020), 39 C.F.L.Q. 45.

Boyd, Susan B., and Ruben Lindy. "Violence Against Women and the B.C. Family Law Act: Early Jurisprudence" (2016), 35 C.F.L.Q. 101.

Canada. Department of Justice. A Study of Post‑Separation/Divorce Parental Relocation, by Nicholas Bala et al. Ottawa: 2014.

Canada. Department of Justice. Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce, by Peter Jaffe et al. Ottawa: February 2014.

El Fateh, Eiad. "A Presumption for the Best?" (2009), 25 Can. J. Fam. L. 73.

Handley, K. R. Spencer Bower and Handley: Res Judicata, 4th ed. London: LexisNexis, 2009.

Jaffe, Peter G., Claire V. Crooks and Nicholas Bala. "A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes" (2009), 6 J. Child Custody 169.

Jollimore, Elizabeth, and Ramona Sladic. "Mobility — Are We There Yet?" (2008), 27 C.F.L.Q. 341.

Kelly, Fiona. "Enforcing a Parent/Child Relationship At All Cost? Supervised Access Orders in the Canadian Courts" (2011), 49 Osgoode Hall L.J. 277.

Leach, Carolyn, Elizabeth McCarty and Michelle Cheung. "Further Evidence in Child Protection Appeals in Ontario" (2012), 31 C.F.L.Q. 177.

Martinson, Donna, and Margaret Jackson. "Family Violence and Evolving Judicial Roles: Judges as Equality Guardians in Family Law Cases" (2017), 30 Can. J. Fam. L. 11.

Neilson, Linda C. Responding to Domestic Violence in Family Law, Civil Protection & Child Protection Cases, 2nd ed. Ottawa: Canadian Legal Information Institute, 2020, 2017Docs 2.

Thompson, D. A. Rollie. "Ten Years After Gordon: No Law, Nowhere" (2007), 35 R.F.L. (6th) 307.

Thompson, Rollie. "Where Is B.C. Law Going? The New Mobility" (2012), 30 C.F.L.Q. 235.

Appeal

APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, DeWitt‑Van Oosten and Voith JJ.A.), 2021 BCCA 11, 45 B.C.L.R. (6th) 14, 50 R.F.L. (8th) 1, [2021] B.C.J. No. 38 (QL), 2021 CarswellBC 46 (WL), setting aside in part a decision of Saunders J., 2019 BCSC 2192, 34 R.F.L. (8th) 331, [2019] B.C.J. No. 2460 (QL), 2019 CarswellBC 3770 (WL). Appeal allowed, Côté J. dissenting in part.

Counsel

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 Legal Education and Action Fund Association and the Rise Women's Legal Centre.

Reasons for Judgment

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 appellate courts stray beyond the proper bounds of review, finality and order in our system of justice is compromised. But not every trial decision can weather a dynamic and unpredictable future. Once it is rendered, lives go on and circumstances may change. When additional evidence is put forward, how should appellate courts reconcile the need for finality and order in our legal system with the need for decisions that reflect the just result in the proceedings before the court? And conversely, what framework should guide trial judges when they determine whether relocation is in a child's best interests, to ensure a just result that can navigate what lies ahead? This appeal raises both questions.

[ 2 ] The Court must first determine the test that applies to the admission of additional evidence on appeal. The Court is asked to decide whether a legal distinction should be drawn between admitting "fresh evidence" (concerning events that occurred before trial) and "new evidence" (concerning events that occurred after trial).

[ 3 ] In my view, the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of 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 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.

[ 5 ] In this case, the Court of Appeal for British Columbia held that Palmer did not strictly govern the admission of new evidence 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 trial reasons. This gave rise to considerable unfairness. And in any event, evidence in family law appeals that is tendered for the purpose of showing a material change of circumstances is more appropriately raised at a variation hearing. Palmer should not be used to circumvent a variation scheme that Parliament specifically designed to address such developments. Admission of this evidence on appeal was not in the 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 best interests to allow a parent to relocate with the child, away from the other parent. It concerns the application of Gordon v. Goertz, [1996] 2 S.C.R. 27, as refined by the case law over the past two decades and viewed in light of the recent amendments 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, families and society. In many cases, the answer is difficult — the court must choose between competing and often compelling visions of how to best 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 of relocation cases requires judges to craft a disposition at a fixed point in time that is both sensitive to that child's present circumstances and 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 discretionary decision making. But children also need predictability and certainty. To balance these competing interests, the law provides a framework and factors to structure a judge's discretion. This case calls on the Court to examine how some of those considerations apply in mobility cases. In particular, I clarify that a moving parent's reasons for relocation and the "maximum contact factor" are relevant only to the extent they bear upon the best interests of the child; a parent's testimony about whether they will move regardless of the outcome of the relocation 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 factual findings and the weight he ascribed to factors bearing on the children's best interests warranted deference on appeal. In the absence of any 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 trial judge'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 British Columbia. She followed him to Kelowna in 2012, where he had moved for a change of scenery. Soon after, they got married. They bought a house and had two boys, who were aged three and five at the time of trial in 2019. They shared parenting duties throughout the marriage.

[ 13 ] The home purchase, already a burden on their modest finances, proved to be a project. An electrical fire shortly after they moved in exposed underlying problems — "rodents, water ingress, mould, and compromise of a structural floor joist" (2019 BCSC 2192, 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 construction project" (trial reasons, at para. 5), with a makeshift kitchen and an only recently completed upstairs bathroom. The father's own expert witness described it as "a working environment, not a living environment": para. 33. Significant money was needed to bring it to marketable 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. That night, she drove the 2 boys some 10 hours to her parents' home in Telkwa, a village in the Bulkley Valley. The parenting arrangement that emerged in the aftermath was formalized in an interim order, splitting parenting time 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. 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 in Kelowna. She was willing to move to Kelowna if the father prevailed; he was unwilling to move to the Bulkley Valley under any circumstances.

[ 16 ] After a nine-day trial, the judge awarded primary residence of the children to the mother and allowed them to relocate to Telkwa. The father appealed and sought to adduce additional evidence. The Court of Appeal admitted the evidence, set aside the 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 would have 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. He doubted they could collaborate to promote the children's best interests. Their marriage had involved "possibly some degree of emotional abuse"; the father had assaulted and emotionally traumatized the mother; and his conduct at trial was "abusive, and profoundly offensive": 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 more likely than the father to promote a positive attitude in the boys toward the other parent, and distancing the parents would help isolate the children from their discord. It was also unlikely that the parents could work cooperatively to promote the children's best interests in a shared parenting structure in the near future. The children would furthermore benefit indirectly from the mother living in Telkwa, where she had a stronger support network.

[ 20 ] The "less significant" issue was the parties' financial situation: para. 31. The house needed an influx of money to make it habitable. The father said he would accelerate the renovations but had not prepared a budget for the ongoing work. His plan to live in the house with the boys depended on his parents paying off the mortgage and line of credit, an arrangement they had yet to confirm 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 mother primary 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 her client's financial situation had suddenly changed. The father later elaborated in an affidavit: he had taken steps to purchase the mother's interest in the property; his parents had purchased a half interest in the home and had increased their personal line of credit to finance renovations; the three of them had refinanced the home, nearly halving the monthly mortgage payments; he had completed the bathroom and master bedroom; and a contractor had been hired to finish the kitchen. He sought to admit evidence of all of these developments in the 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" could be admitted if it established "that a premise or underpinning or understanding of the trial judge that was significant or fundamental or pivotal 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, the judge'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 West Kelowna" 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 the ultimate result arrived at by the trial judge": para. 69. The mother's need for emotional support could not justify relocation, even at the cost of "some friction between the parties": paras. 74-75. And the trial judge should have considered whether the children could have stayed with their father in Kelowna. The court concluded that the children's best interests were best served by staying in Kelowna with both 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 the evidence 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 decision below. The Court of Appeal erred by applying a different test and admitting the evidence on appeal. 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 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 is consonant with the mobility framework set out in Gordon as refined over the past two decades. His factual findings and the weight he ascribed 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: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 188; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, at para. 43. Whether in criminal or non-criminal matters (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 107), courts have typically applied the four criteria set out by this Court in Palmer 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 general principle 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 proceedings in 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 in the 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 ensures that the admission of additional evidence on appeal will be rare, such that the matters in issue between the parties should "narrow rather than expand as [a] case proceeds up the appellate ladder": Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 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 that could have been considered by the court at first instance, had the party exercised due diligence. This protects certainty in the judicial process and fairness to the other party. The remaining criteria — that the evidence be relevant, credible and could have affected the outcome — 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 reach a 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 purpose of reviewing the decision below. In my view, the Palmer test ensures the proper balance and is sufficiently flexible to respond to any unique 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 challenges that arise when litigants seek to adduce "new" evidence. Third, I consider how Palmer applies in the family law context. Finally, I address 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 been obtained 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 their best case at trial. This ensures finality and order in the judicial process: R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.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 law generally "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 action estoppel doctrine, which safeguards "the interest of an individual in being protected from repeated suits and prosecutions for the same cause" 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 action against another party where the basis of the cause of action was argued or could have been argued in the prior action if the party in question had exercised reasonable diligence (Grandview (Town of) v. Doering, [1976] 2 S.C.R. 621, at pp. 634-38, citing Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313).

[ 38 ] The Palmer test's due diligence criterion plays a similar role: it ensures that litigants put their best foot forward when 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 kick at 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 and generally should not have to relitigate an issue decided at first instance, absent a reviewable error. Otherwise, the opposing party must endure additional delay and expense to answer a new case on appeal. Permitting a party in an appeal to fill the gaps in their trial evidence based 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. Evaluating evidence and making factual findings are the responsibilities of trial judges. Appellate courts, by contrast, are designed to review trial decisions for errors. The admission of additional evidence on appeal blurs this critical distinction by permitting litigants to effectively extend 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 diligence criterion 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 SCC 33, [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 greater concerns 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 of the 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 of due 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 could have affected the result at trial. Unlike the first criterion, which focuses on the conduct of the party, these three criteria focus on the evidence adduced. And unlike due diligence, the latter three criteria are "conditions precedent" — evidence that falls short of them cannot 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 the context of the proceedings (Sipos, at paras. 30‑31; R. v. Warsing, [1998] 3 S.C.R. 579, at para. 56). This principle is directly linked to the correctness of the trial decision and the truth-seeking function of our trial process. Evidence that is unreliable, 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, [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 to the test of cross-examination or rebuttal at trial, and the adverse party may not have had the ability to verify its accuracy: Lévesque, at para. 25. If the evidence is challenged or its probative value is in dispute, appellate courts may, among other things, provide the opposing party an opportunity to respond, allow cross‑examination of a witness, permit the submission of expert evidence in response to additional expert evidence, or remit the matter to the court of first instance: Lévesque, at para. 25.

(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 — by balancing the due diligence criterion against the criteria of relevance, credibility, and whether the evidence could have affected the result. Evidence that a diligent party could not have adduced at trial warrants admission on appeal where it satisfies the other three criteria. Evidence that a diligent party could have adduced at trial generally should not be admitted, even if that evidence is relevant, credible, and could have affected the outcome.

[ 48 ] A court's overarching concern is the interests of justice. Accordingly, Palmer does not operate as a rigid test; it is a purposive test, sensitive to the circumstances of the case and the nature of the evidence. The court should consider all of the circumstances, including the nature of the evidence and why it was not adduced at trial, in determining whether its admission would be in the interests of justice.

(2) The "New Evidence" Versus "Fresh Evidence" Distinction

[ 49 ] Having considered the Palmer criteria, I now address the "new evidence" versus "fresh evidence" distinction that animated the Court of Appeal's decision. The Court of Appeal held that Palmer's due diligence criterion does not apply to "new evidence" that came into existence after trial. I disagree.

[ 50 ] At the outset, the concern that logically underlies this distinction — that evidence about post-trial developments cannot be subject to a due diligence inquiry since it did not exist at trial — is resolved by recognizing what the due diligence inquiry actually entails. The due diligence inquiry asks whether a party, acting reasonably, could have obtained and presented the evidence at trial. In the context of "new" evidence, this requires courts to ask whether the developments in question were reasonably foreseeable before trial, such that a diligent party could have taken steps to prevent or address them.

[ 51 ] I note that there is nothing in Palmer's language that supports drawing a distinction between fresh and new evidence. The test simply asks whether the evidence "could not, by the exercise of due diligence, have been obtained for the trial." The language "have been obtained for the trial" does not limit the evidence to facts that arose before the trial concluded. This language extends naturally to evidence of post-trial developments that a diligent party could have anticipated and, in appropriate cases, taken steps to prevent from arising, or to ensure were resolved before or during the trial.

[ 52 ] The courts that have drawn a distinction between fresh and new evidence have typically done so in the context of family law. However, the various tests that courts have developed to decide when to admit "new" evidence are largely consistent with Palmer. Regardless of the test applied, courts ultimately ask whether admitting the evidence would be in the interests of justice, having regard to the relevance and credibility of the evidence, whether the evidence could have affected the outcome, and whether the party seeking to admit the evidence acted with due diligence. These are precisely the Palmer criteria.

[ 53 ] For instance, the Court of Appeal in this case applied the "fundamental premise" test: it would admit new evidence if it "undermined or altered" a "premise or underpinning or understanding of the trial judge that was significant or fundamental or pivotal": para. 43. But this test is essentially a reformulation of the Palmer criteria — in particular, the requirement that evidence "could have affected the result at trial." This criterion requires courts to ask whether, if believed, the additional evidence would have been decisive or potentially decisive, i.e., whether it would have undermined a primary underpinning of the decision.

[ 54 ] The tests courts have devised to decide when to admit new evidence are not demonstrably different from Palmer. The practical difference lies in whether the due diligence criterion applies to evidence about post-trial developments. In my view, the answer is yes — but its application must be attentive to the nature of the evidence and the circumstances in which it arose.

[ 55 ] In the case of new evidence concerning post-trial developments, the due diligence criterion requires courts to ask whether a reasonable person in the position of the party seeking to adduce the evidence could have anticipated these developments before the trial ended and taken steps to address them during or prior to trial. If the developments were reasonably foreseeable, the party should have ensured that the situation was sufficiently resolved to present clear evidence at trial on the issue, or should have sought an adjournment to enable the matter to be resolved: see, e.g., Willick v. Willick, [1994] 3 S.C.R. 670, at pp. 715-16, per L'Heureux-Dubé J.

[ 56 ] On the other hand, if the developments were not reasonably foreseeable before the trial, the evidence of post-trial developments may satisfy the due diligence criterion, provided of course that the other three Palmer criteria are also satisfied.

[ 57 ] In sum, evidence tendered on appeal for the purpose of reviewing the decision below — whether it relates to pre-trial or post-trial events — is subject to the Palmer criteria. The evidence must satisfy all four criteria (subject to the court's overarching concern for the interests of justice). To the extent that courts have drawn a distinction between new and fresh evidence, this distinction is unnecessary.

(3) Palmer in the Family Law Context

[ 58 ] I turn now to how Palmer applies in the family law context — specifically, to additional evidence tendered on an appeal of a best interests of the child determination.

[ 59 ] As a general matter, courts have recognized that particular considerations arise in the family law context that must be factored into the Palmer analysis. These considerations relate to (1) the nature of the family law proceedings and (2) the nature of the interests at stake.

[ 60 ] First, the nature of the inquiry in family law is different from the inquiry in other cases. The best interests of the child inquiry is forward-looking and child-centred. There is no dispute about whether a past wrong was committed; instead, the court seeks to determine what will best advance the interests of the child moving forward. As such, evidence about how circumstances have developed after the trial is often directly relevant to the inquiry.

[ 61 ] Second, the interests at stake in family law proceedings are unlike those in typical civil or criminal proceedings. In family law cases — particularly those involving the best interests of the child — the interests of the child are paramount. A rigid application of the Palmer test in these cases could lead to outcomes that are inconsistent with a child's best interests. Courts have accordingly recognized that the Palmer test must be applied more flexibly in the family law context.

[ 62 ] But "more flexibly" does not mean that the Palmer test is inapplicable. Flexibility does not licence the wholesale admission of any evidence that bears on the interests of the child. Instead, it means that courts should apply the Palmer criteria in a manner that is attuned to the unique features of family law proceedings and the interests at stake.

[ 63 ] What does this flexibility entail? My view is that the flexibility primarily attaches to how the due diligence criterion is applied. In family law, the paramount consideration is the interests of the child. Finality and order remain important, but they are not the paramount concern. As a result, the interests of the child may, in exceptional cases, warrant admitting evidence that does not strictly satisfy the due diligence criterion. For instance, where a reviewing court determines that a child faces a serious risk of harm if the additional evidence is not admitted, the interests of justice may favour admission of the evidence notwithstanding a lack of due diligence on the part of the party seeking to admit it.

[ 64 ] The remaining Palmer criteria — relevance, credibility, and whether the evidence could have affected the result — remain stringent conditions that must be satisfied before additional evidence is admitted on appeal. In the family law context, these criteria require courts to focus on whether the additional evidence is directly relevant to the inquiry as to what is in the best interests of the child.

[ 65 ] In short, a flexible application of Palmer in the family law context means that courts must remain attuned to the exceptional circumstances that may arise in cases involving the best interests of children, while still being guided by the principles of finality and order that underlie the Palmer test. The overarching concern for the interests of justice remains the guiding principle.

[ 66 ] Before turning to how this framework applies in the present case, I pause to note that a family law variation procedure provides an alternative to admitting additional evidence on appeal.

[ 67 ] In family law cases, the admission of post-trial evidence on appeal may be unnecessary because legislative variation schemes permit a judge of first instance to vary a parenting order where a change of circumstances has occurred: see, e.g., Divorce Act, s. 17(5). A variation application and an appeal are distinct proceedings based on fundamentally different grounds. An appeal reviews the decision below for reviewable legal error; it is not a mechanism to introduce a material change of circumstances. As a result, the existence of a variation procedure must be weighed in the interests of justice analysis.

[ 68 ] Where a variation procedure is available, a party who seeks to introduce evidence of post-trial developments on appeal must explain why it is in the interests of justice to admit the evidence at the appellate level, rather than through the variation procedure. If the party cannot do so, the interests of justice generally favour requiring the party to pursue a variation application rather than admitting the evidence on appeal.

[ 69 ] The case law confirms this approach. Courts have generally held that the availability of a variation procedure should be taken into account when deciding whether to admit additional evidence on appeal: Willick, at pp. 715-16, per L'Heureux-Dubé J.; N.L. v. S.C., 2011 BCCA 403, 309 B.C.A.C. 195, at para. 40.

[ 70 ] The main advantage of a variation procedure is that it provides a more appropriate forum for assessing material changes to family circumstances. A variation application before a court of first instance allows the parties to introduce evidence, cross-examine witnesses, and make submissions on the full picture. By contrast, admitting evidence on appeal — particularly evidence of post-trial developments — does not provide the parties with these procedural safeguards.

[ 71 ] In sum, the availability of a variation procedure is a relevant factor in the interests of justice analysis under Palmer. The party seeking to admit post-trial evidence on appeal must explain why the evidence should be admitted at the appellate level rather than raised in a variation application. If no compelling reason exists, the interests of justice generally favour requiring the party to pursue a variation application.

(4) Use of Properly Admitted Evidence

[ 72 ] The admission of additional evidence on appeal does not automatically entitle an appellate court to substitute its own assessment of the evidence for that of the trial court. Where additional evidence is properly admitted on appeal, the appellate court must determine how to use the evidence. There are generally two ways: (1) the court may use the evidence to determine whether the trial decision was correct, or (2) the court may use the evidence in determining the appropriate remedy after it has concluded that the trial decision was wrong.

[ 73 ] As a general rule, the first use is impermissible: appellate courts are not entitled to use additional evidence as a basis for overturning the trial court decision, where the evidence is tendered for the purpose of showing that the trial decision is now incorrect in light of post-trial developments: Hickey v. Hickey, [1999] 2 S.C.R. 518, at para. 10. The reason is that admission of such evidence for this purpose would undermine the role of the trial court as the primary finder of fact and the importance of deference to the trial court's findings.

[ 74 ] The second use — using properly admitted additional evidence in determining the appropriate remedy after the court has identified a reviewable error — raises fewer concerns. In this context, the appellate court has already determined that the trial decision is incorrect. The additional evidence is used to assist the court in crafting an appropriate remedy in light of the error identified.

[ 75 ] In family law cases, the use of additional evidence presents unique considerations. The child's best interests may be served by an appellate court that can consider the most current information about the child's circumstances. However, this must be balanced against the risk of usurping the role of the trial court, which is best placed to assess the evidence and make findings of fact. In my view, where additional evidence is admitted in a family law appeal, the appropriate course is generally to remit the matter to the trial court so that the evidence can be assessed in the context of a full evidentiary record.

(5) Application to This Case

[ 76 ] I now turn to the merits of the fresh evidence motion in this case.

[ 77 ] In this case, the respondent sought to adduce on appeal evidence of developments in his financial situation and the state of the family home that had occurred after the trial. The Court of Appeal admitted this evidence under a test that did not require the respondent to satisfy the due diligence criterion. I have concluded that the Court of Appeal erred in applying a different test and should have applied Palmer.

[ 78 ] Under Palmer, the first question is whether the evidence could, by the exercise of due diligence, have been obtained for the trial. In my view, the answer is yes — the evidence could have been available at trial had the respondent acted with due diligence.

[ 79 ] The key financial improvements the respondent sought to admit post-trial — the involvement of his parents in securing the mortgage and financing the renovations — were developments the respondent had promised at trial but had not yet actualized. The trial judge noted that the respondent had "said he will accelerate the renovations" and that his plan "depend[ed] on his parents paying off the mortgage and line of credit, 'a done deal' they [had] yet to confirm by trial": para. 31.

[ 80 ] In other words, the respondent had not followed through on the steps he had said he would take. He should have ensured that the relevant steps — his parents' commitment to purchase the mother's interest, the refinancing of the home, the completion of the renovations, the hiring of a contractor — were completed and evidenced before trial. His failure to do so reflects a lack of due diligence on his part. He should not now be permitted to fill the gaps in his trial evidence with the benefit of the trial judge's reasons.

[ 81 ] I also note that this is not a case where the post-trial developments were unforeseeable. The respondent had promised to take these steps. The steps were his to take. There was no change in circumstances that rendered the relevant developments unforeseeable; the respondent simply had not yet followed through on his stated plans.

[ 82 ] In any event, even if the evidence could be said to satisfy the due diligence criterion, its admission would not be in the interests of justice in the circumstances of this case. The respondent sought to introduce evidence about his financial circumstances — circumstances that had changed as a direct result of his own inaction. The respondent's financial situation at the time of trial reflected, in part, his failure to take the steps he had said he would. Admitting evidence on appeal about those same improvements does not serve the interests of justice; it rewards the respondent for his inaction at trial.

[ 83 ] Moreover, the available variation procedure provides a more appropriate forum for assessing these developments. The respondent could have applied to vary the trial order on the basis of a material change in circumstances — namely, the financial improvements he has since made. A variation application would have provided both parties with the opportunity to introduce evidence, cross-examine witnesses, and make full submissions. There was no compelling reason to depart from the variation procedure in favour of admitting the evidence at the appellate level.

[ 84 ] I conclude that the Court of Appeal erred in admitting the evidence. Because the evidence was improperly admitted, it should not have been used to set aside the trial order. I turn now to the second issue: the relocation framework.

B. The Relocation Framework

[ 85 ] I turn to the legal framework that governs relocation applications in family law. This framework is grounded in the best interests of the child. The trial judge applied the framework set out in Gordon v. Goertz, which has been refined by the case law over the past two decades. The 2019 amendments to the Divorce Act also bear on the framework.

(1) Gordon v. Goertz

[ 86 ] In Gordon, the Court established the framework for determining whether a custodial parent should be permitted to relocate with the child. Gordon set out a two-stage inquiry: first, the party seeking a variation of the custodial order must establish a material change in circumstances; and second, the court must apply a broad best interests analysis to determine what order should be made.

[ 87 ] Within the best interests analysis, Gordon identified a number of factors that courts should consider. These factors include: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; and (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[ 88 ] Gordon also established the following principles: the court must be guided by the best interests of the child, not the interests and rights of the parents; and the views of the custodial parent who is seeking to relocate are not determinative of the best interests of the child. Gordon further emphasized the need for an individualized and fact-specific inquiry.

(2) The Case Law Since Gordon

[ 89 ] Over the past 25 years, case law has refined the Gordon framework. I highlight five key refinements.

[ 90 ] First, courts have clarified the nature of the inquiry. The best interests of the child inquiry is holistic and child-centred. It must always remain focused on the child's needs and interests, not the parents' rights or desires: Young v. Young, [1993] 4 S.C.R. 3, at p. 75; Gordon, at para. 20.

[ 91 ] Second, courts have clarified that the maximum contact principle is not a presumption. Gordon recognized that maximizing contact between the child and both parents is generally in the child's best interests, but this is a factor to be considered rather than a presumption that must be displaced: Gordon, at para. 49.

[ 92 ] Third, courts have recognized the significance of family violence in the best interests analysis. The research shows that exposure to family violence can have serious and lasting effects on children: see, e.g., S. B. Boyd and R. Lindy, "Violence Against Women and the B.C. Family Law Act: Early Jurisprudence" (2016), 35 C.F.L.Q. 101; P. G. Jaffe, C. V. Crooks and N. Bala, "A Framework for Addressing Allegations of Domestic Violence in Child Custody Disputes" (2009), 6 J. Child Custody 169. Courts must weigh family violence carefully in the best interests analysis.

[ 93 ] Fourth, courts have clarified that the custodial parent's reason for moving is relevant only insofar as it bears upon the child's best interests. A moving parent need not establish that the relocation is necessary or that there is no reason to refuse it: Bjornson v. Creighton, 2009 BCCA 97, 92 B.C.L.R. (4th) 239, at para. 26; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 40.

[ 94 ] Fifth, courts have clarified that a parent's stated intention to move regardless of the court's decision should not be given weight in the best interests analysis. Such testimony is not reliable evidence of what a parent will do; it is designed to influence the court's decision. Courts should not give weight to such testimony: Bjornson, at para. 28.

(3) The Divorce Act Amendments

[ 95 ] The 2019 amendments to the Divorce Act address parenting and relocation. These amendments came into force on March 1, 2021. They largely codify the case law refinements I have described and introduce some new elements.

[ 96 ] The amendments address relocation in ss. 16.9 to 16.93. A "relocation" is defined in the Divorce Act as "a change in the place of residence of a child or a person who has parenting time or decision-making responsibility in respect of a child that is likely to have a significant impact on the child's relationship with" another person who also has such responsibilities: s. 16.9(1).

[ 97 ] Before relocating, a parent must provide written notice to the other parent at least 60 days before the relocation: Divorce Act, s. 16.9(1). The other parent may object to the relocation within 30 days: s. 16.9(2). If the other parent objects, the relocating parent must apply to the court for an order permitting the relocation: s. 16.9(4).

[ 98 ] When the court is asked to permit a relocation, it must consider the best interests of the child: Divorce Act, s. 16.92(1). The court may consider "all relevant circumstances relating to the child's best interests," including the enumerated factors in s. 16 and the following factors specific to relocation: (a) the reasons for the relocation; (b) the impact of the relocation on the child; (c) the amount of time the child spends with each person who has parenting time; (d) the existence of the notice requirement; and (e) the appropriateness of a parenting order that allows the relocation: s. 16.92(1)(a)-(e).

[ 99 ] The Divorce Act also addresses the burden of proof. Where the parties have substantially equal parenting time, the party seeking the relocation must establish that it is in the best interests of the child: s. 16.92(2)(a). Where the relocating parent has the majority of parenting time, the party opposing the relocation has the burden of establishing that the relocation is not in the best interests of the child: s. 16.92(2)(b).

[ 100 ] The new Divorce Act amendments also respond to issues identified in the case law over the past few decades. The language in s. 16(6) now expressly recognizes that the so-called maximum contact principle is not an independent factor that must be given particular weight. Section 16(6) provides that "the court shall not consider the willingness of a person to facilitate the child's relationship with another person as a factor" and must only consider "the best interests of the child." Section 16(4) provides that the court must consider "any family violence and its impact on, among other things," the child and the other parent. The Divorce Act now expressly defines "family violence" in s. 2(1).

(4) The Restated Common Law Framework

[ 101 ] In light of these refinements, the common law relocation framework can be restated as follows.

[ 102 ] First, courts must determine whether relocation is in the best interests of the child, having regard to the circumstances of each case. The inquiry must be holistic and child-centred.

[ 103 ] Second, the Gordon factors continue to provide useful guidance. Courts must consider all of the circumstances affecting the child, including the existing parenting arrangement, the child's relationship with each parent and other significant people in the child's life, the disruption that a relocation would cause, and family violence.

[ 104 ] Third, the maximum contact principle must not be treated as a presumption or as an independent factor. Instead, maximizing contact between the child and both parents is one consideration within the holistic best interests inquiry. Parenting time that is consistent with the child's best interests — rather than maximum contact for its own sake — is the proper goal.

[ 105 ] Fourth, a moving parent's reasons for relocating are relevant only to the extent they bear upon the child's best interests. A parent need not establish that the move is strictly necessary. The court should not impose undue scrutiny on the moving parent's reasons.

[ 106 ] Fifth, a parent's testimony about whether they will move regardless of the outcome of the relocation application should not be considered. Such testimony is not reliable evidence and may unduly influence the court's decision.

[ 107 ] Sixth, family violence is a significant factor in the best interests analysis. Courts must carefully assess the impact of any family violence on the child, including indirect exposure to conflict between the parents.

(5) Application to This Case

[ 108 ] I now apply this framework to the trial judge's decision.

[ 109 ] In this case, the trial judge applied the Gordon framework. He conducted a careful, fact-specific analysis of all of the relevant circumstances bearing on the children's best interests. He properly concluded that two factors favoured relocation: the parties' acrimonious relationship and the mother's financial and support situation.

(a) The "Will Move" Evidence

[ 110 ] The father submits that the trial judge erred by not considering the mother's evidence about whether she would move to Kelowna if the court did not permit relocation. He argues that the trial judge should have considered whether the children would be better off staying with him in Kelowna if the mother chose to move to Telkwa regardless.

[ 111 ] I disagree. Evidence of a parent's stated intention to move regardless of the court's decision should not be given weight in the best interests analysis. As I explained above, such evidence is not reliable. Giving weight to such evidence would effectively allow a parent to manipulate the outcome of the relocation application by threatening to move regardless of the court's order. The trial judge was right not to consider this evidence.

(b) The Maximum Contact Principle

[ 112 ] The father also submits that the trial judge erred by failing to adequately consider the principle that children benefit from maximum contact with both parents.

[ 113 ] I disagree. The trial judge recognized the importance of the children's relationship with their father and the impact that relocation would have on it. He did not treat the maximum contact principle as a presumption that had to be overcome. Rather, he properly considered it as one factor within the holistic best interests inquiry.

[ 114 ] The trial judge's analysis was consistent with the restated common law framework. He considered the impact of relocation on the children's relationship with their father, but he concluded that this was outweighed by the other factors bearing on the children's best interests — particularly the parties' acrimonious relationship and the mother's need for family support.

(c) The Mother's Reasons for Relocation

[ 115 ] The father submits that the trial judge placed undue weight on the mother's reasons for moving and her need for emotional support.

[ 116 ] I disagree. The mother's reasons for relocating — including her need for the support of her family network in Telkwa — were directly relevant to the children's best interests. The trial judge correctly recognized that the children's wellbeing is intertwined with their primary caregiver's wellbeing. A parent who has strong family support and better economic prospects is better placed to provide for the children's needs.

[ 117 ] Moreover, the trial judge did not simply accept the mother's reasons as sufficient. He considered her reasons in the context of all of the circumstances bearing on the children's best interests. His conclusion that the children's best interests favoured relocation was well supported by the evidence.

(d) The Parties' Acrimonious Relationship

[ 118 ] The father also submits the trial judge erred in placing undue emphasis on the acrimonious relationship between the parties. For the father, the "friction" was a "thing of the past" (R.F., at para. 34), it was nothing unusual for parties who are separating, and there was no evidence that it occasioned any distress for the children.

[ 119 ] I disagree. The trial judge's factual findings were well supported by the evidence.

[ 120 ] The trial judge carefully explained why he viewed the parties' relationship as acrimonious, both during the marriage and at the time of trial. He found that there was friction during the marriage: the mother had been subject to the father's controlling and overbearing personality; there was "possibly some degree of emotional abuse"; she had been physically assaulted; and she was emotionally traumatized.

[ 121 ] And the father's continued animosity towards the mother became readily apparent during the trial itself. The trial judge found his conduct at trial to be abusive: para. 41. Most notably, the father adduced a nude "selfie" of the mother in an affidavit, which the trial judge found served no purpose but to humiliate her. The trial judge also noted that the assault, and the father's denials that it had occurred, was "likely to be an ongoing source of acrimony": para. 41 (emphasis added). The trial judge concluded that this high-conflict relationship between the parties had "particularly significant" implications for the children: para. 41. These considerations weighed in favour of the children staying primarily with the mother. In these circumstances, it was open for the trial judge to conclude that a co-parenting arrangement could only work in Telkwa. If the mother returned to Kelowna, she would likely be socially isolated and reliant on the father.

[ 122 ] Despite the trial judge's findings, which were well supported by the record, the Court of Appeal intervened because "the trial judge's concerns about Mr. Grebliunas' behaviour towards Ms. Barendregt warrant some context": para. 70.

[ 123 ] The court identified four factors that purportedly "attenuated" the seriousness of the circumstances. First, the mother never argued that hostility between the parties supported her move; her evidence was that the parties were getting along better than when they first separated. Second, many of the issues the judge had been concerned about had taken place in the past. Third, there was no evidence of any event involving or taking place in the presence of the children since separation. And fourth, the trial judge failed to consider the evidence that the parties' relationship was improving.

[ 124 ] None of these factors gave the Court of Appeal licence to disturb the trial judge's factual findings regarding the relationship between the parties.

[ 125 ] First, although counsel for the mother did not advance the father's animus as a factor that supported relocation, the state of the parties' relationship was obviously relevant. And as the interveners West Coast LEAF Association and Rise Women's Legal Centre point out, it is important to be aware of the social and legal barriers to women disclosing family violence in family law proceedings.

[ 126 ] Second, the parties' acrimonious relationship was far from a relic of the distant past. Again, the acrimony surfaced during the trial itself. And abusive dynamics often do not end with separation — in fact, the opposite is often true: Jaffe, Crooks and Bala, at p. 171; Neilson, at ch. 4.5.1, 7.2.2 and 7.2.6. Trial judges have the advantage of observing the dynamic between the parties first-hand; any resulting assessment of their ability to work together in the future must attract deference.

[ 127 ] Third, the fact that there was no evidence of any event involving the children, or taking place in the children's presence, could not be determinative. Not only can indirect exposure to conflict have implications for the children's welfare, the trial judge found there was a significant risk that conflict between the parties would spill over and directly impact the children. He was entitled to make that finding on the evidence before him.

[ 128 ] Fourth, the record discloses no indication that the trial judge forgot, ignored, or misconceived the evidence showing improvements in the parties' relationship. An omission in the reasons, in and of itself, does not mean that the appellate court is permitted to review the evidence heard at trial. And in any event, cooperating, staying, or reconciling with a party does not necessarily indicate that an incident of abuse or violence was not serious: see D. Martinson and M. Jackson, "Family Violence and Evolving Judicial Roles: Judges as Equality Guardians in Family Law Cases" (2017), 30 Can. J. Fam. L. 11, at p. 34. In the end, what mattered was the trial judge's conclusion that it was unlikely that the parents could work cooperatively to promote the children's best interests in a shared parenting structure in the near future: para. 42.

[ 129 ] Nevertheless, the Court of Appeal concluded that the trial judge's findings regarding the acrimonious relationship between the parties could "no longer support the ultimate result arrived at by the trial judge": para. 69.

[ 130 ] Quite simply, however, it was not the place of the Court of Appeal to decide that the broader context could "attenuate" the seriousness of the father's behavior in the absence of an overriding and palpable error. Nor was it the court's place to reweigh a factor that had been carefully considered by the trial judge. A difference in opinion does not provide an appellate court licence to eclipse the trial court's judgment in favour of its own. The Court of Appeal was wrong to dispense with deference in the absence of a reversible error.

(e) The Other Gordon Factors

[ 131 ] I am satisfied that the trial judge's Gordon analysis was free from material error. The following factors all supported the trial judge's conclusion that relocation was in the children's best interests: there was a 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. I see no reason to set aside the trial judge's decision.

VI. Disposition

[ 132 ] The appeal is allowed. The decision of the Court of Appeal is set aside, and paras. 1 to 6 of the trial judge's order regarding the primary residence of the children are restored. The mother is entitled to her costs in this Court and the courts below.

Reasons Dissenting in Part

The following are the reasons delivered by

Côté J. (dissenting in part) —

I. Overview

[ 133 ] I have had the benefit of reading my colleague Justice Karakatsanis's reasons. While I agree that the test laid out in Palmer v. The Queen, [1980] 1 S.C.R. 759, governs, as it applies to both fresh and new evidence, I respectfully disagree with her analysis on two points and with the disposition she proposes.

[ 134 ] I respectfully part company with my colleague's analysis on two points. First, it is in my view inappropriate to comment on the Gordon v. Goertz, [1996] 2 S.C.R. 27, framework in the absence of a full legislative analysis of the recent Divorce Act amendments. Second, I disagree with my colleague's application of Palmer to the facts of this case. Applying Palmer properly and flexibly, I would admit the new evidence. Given that the new evidence was improperly used by the Court of Appeal, however, I would remand the matter to the trial court rather than restoring the trial order.

[ 135 ] Second, as I mentioned, I disagree with my colleague's application of Palmer to the facts of this case. Appellate courts that strictly apply the Palmer test tend to focus too narrowly on the potential for future litigation, at the expense of the unique features of cases involving children's welfare. The Palmer test must be applied more flexibly in family law cases involving the best interests of a child than my colleague suggests.

[ 136 ] On a proper application of Palmer, I would admit the new evidence and remand the appeal to the trial court for reconsideration of the children's best interests in light of the new information regarding the father's financial situation and renovations.

II. Analysis

[ 137 ] As my colleague rightfully notes, the Palmer test must be applied more flexibly in family law cases involving the best interests of a child (para. 67; Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at pp. 188-89). I agree with this general statement of the law, but I disagree with how my colleague applies it to the facts at bar.

[ 138 ] Although the rules for admitting new evidence are not designed to permit litigants to retry their cases, it is trite law that the best interests of a child "may provide a compelling reason to admit evidence on appeal that might not otherwise have been admitted": Catholic Children's Aid Society, at p. 189.

[ 139 ] This flexibility is borne out by a review of the relevant case law. Over the last decade, Canadian appellate courts admitted additional evidence in family law cases in 48 out of 152 reported cases reviewed. This high rate of admission reflects the courts' recognition that the best interests of children demand a more flexible approach than is warranted in other cases.

[ 140 ] My colleague appears to accept the importance of flexibility in this context. She notes that there may be "exceptional cases" where a child's best interests favour admitting further evidence. For instance, she acknowledges that where a child faces a serious risk of harm, the interests of justice may favour admission of evidence notwithstanding a lack of due diligence. I agree with this acknowledgment, but I believe my colleague is too narrow in her characterization of what constitutes an exceptional case.

[ 141 ] But, respectfully, my colleague's approach — narrowing Palmer's flexibility to "exceptional cases" — is unduly rigid and undermines the specificity needed in cases involving children's welfare. Indeed, it would often deny judges the full context needed to make decisions that are truly in the best interests of the child. Rather, flexibility must be the default posture in all cases involving children's welfare.

[ 142 ] Contrary to my colleague's reasoning, all of the criteria must be applied flexibly in cases involving the best interests of children. I will briefly explain why this is so with respect to the first and fourth Palmer criteria.

A. Palmer Test

(1) Flexibility in Assessing Due Diligence

[ 143 ] Finality and order are not judicial straitjackets. Infants grow quickly into toddlers and then — in what may seem like the blink of an eye — into young adults. This development and maturation process demands that the courts remain sensitive to evidence about a child's current circumstances.

[ 144 ] With respect, my colleague takes a rigid view of due diligence. She focuses inordinately and narrowly on the "litigant's conduct", stating that parties should not be permitted to "benefit from their own inaction." In doing so, I believe she loses sight of the child whose interests are at stake.

[ 145 ] First, I believe the reason for flexibility in this context to be obvious. It is to ensure that reviewing courts have the full context, given the ongoing nature of a child's welfare — the undammed stream. This means that flexibility must be calibrated to keep the focus always on the child's current interests.

[ 146 ] Second, finality is a double-edged sword. My colleague is rightly concerned about the impact of protracted litigation on "women, [who] are often already shouldering the economic consequences of a marital breakdown" (para. 68). This is a real concern. But finality works both ways: insisting on finality regardless of a child's current circumstances can harm the very child the process is designed to protect.

[ 147 ] Third, I acknowledge that an application to vary may in some circumstances be the appropriate procedure. But an application to vary, like a motion to adduce further evidence on appeal, is "adversarial". It would expose the parties, and their children, to yet further litigation. This concern is particularly pressing in cases where the parties already have a fractious relationship.

(2) Flexibility in Assessing Whether the New Evidence Could Have Affected the Result

[ 148 ] The fourth Palmer criterion requires the court to ask whether the further evidence, if believed, could have affected the result.

[ 149 ] As with due diligence, however, flexibility is once again nowhere to be found in my colleague's analysis. She does of course recite the definition of this criterion from Palmer and note that it must be applied with reference to what may be in a child's best interests. But when it comes to applying this criterion to the facts of this case, she does not reach this step.

[ 150 ] Such an approach fails to recognize that in Catholic Children's Aid Society, this Court explicitly contemplated the need for flexibility in applying the fourth Palmer criterion. L'Heureux-Dubé J., writing for a unanimous Court, endorsed the following approach:

Counsel for the child supports the approach advanced by the respondent society and also relies on Genereux . . . as the appropriate test in matters where the best interests of the child are the paramount concern.

Although I doubt that Genereux . . . intended to depart significantly from the test of Palmer . . . its approach is to be commended. . . . If Genereux . . . has enlarged the scope of the admission of fresh evidence on appeal, it has done so, in the present case at least, with regard to the final arm of the [Palmer] test, that is, whether the fresh evidence may affect the result of the appeal . . .

[ 151 ] This excerpt affirms what is by now beyond dispute: the Palmer criteria — particularly the fourth criterion — are more flexible in appeals concerning the best interests of children, "where it is important to have as much relevant information as possible about the child's situation": T.G. v. Nova Scotia (Minister of Community Services), 2021 NSCA 60, at para. 71.

[ 152 ] In light of the foregoing, I will now apply Palmer to the situation in the case at bar.

B. Application of Palmer

[ 153 ] As I mentioned above, only the first and fourth of the Palmer criteria are in issue in this appeal. With respect to the first criterion, the mother argues that the new evidence could, with proper diligence, have been obtained for the trial. With respect to the fourth criterion, the mother argues that the new evidence could not have affected the result at trial because the financial issue was only the "less significant" factor in the trial judge's reasoning.

[ 154 ] As I will explain, I disagree with the mother on both counts.

(1) Due Diligence

[ 155 ] First, due diligence is not a barrier to admitting the new evidence. By its nature, the evidence could not have been adduced at trial. I acknowledge that the father could have acted more expeditiously in taking the relevant steps to improve his financial situation. But this does not mean he lacked due diligence.

[ 156 ] Further, even if the evidence in question could have been obtained for the trial, this would not end the analysis. As I have indicated, giving effect to the need for flexibility in the child custody context means that the due diligence criterion must be applied with sensitivity to the interests of the child. Here, the evidence speaks directly to the father's ability to provide a stable home for the children. This is quintessentially a matter that bears on the best interests of the children.

[ 157 ] Unlike my colleague, I do not accept that the existence of the variation procedure weighs against admission. She asserts that "[a] variation application and an appeal are distinct proceedings based on fundamentally different grounds" (para. 67). While that is formally correct, the distinction is of limited practical assistance when the real question is what will best serve the children's interests.

(2) Whether the New Evidence Could Have Affected the Result

[ 158 ] Applying the fourth Palmer criterion, I conclude that the new evidence could have affected the result.

[ 159 ] It is noteworthy that my colleague does not even reach this branch of the Palmer test. She bases her conclusion on the father's alleged lack of due diligence and on an absence of "circumstances" which might warrant departing from the general rule. In my respectful view, this approach is too focused on the party's conduct at the expense of the child's interests.

[ 160 ] More to the point, however, the fourth Palmer criterion favours admission of the new evidence. I say this for three reasons.

[ 161 ] First, the new evidence bears on a critical aspect of the trial judge's reasoning. The trial judge found that the "parties' financial situation, particularly as it pertains to the house", was an issue that "favour[ed] the [mother's] move": para. 31. The financial issue was not merely peripheral — it was directly tied to the trial judge's conclusion about the stability of the father's situation.

[ 162 ] Second, the new evidence addresses concerns the trial judge had regarding the home environment the father would provide for the children. If believed, the new evidence suggests that the house is now much closer to completion and that the father's financial situation has significantly improved. This speaks directly to the trial judge's concern about the habitability of the family home.

[ 163 ] Finally, the new evidence undermines the trial judge's conclusion that, given the father's dire financial straits, his ability to remain in the West Kelowna home was "less than certain" (para. 40). The trial judge relied on this uncertainty in his assessment of the parties' financial situation. The new evidence addresses this uncertainty directly.

[ 164 ] The best interests analysis is of course highly contextual and fact‑dependent. It is thus impossible to gauge exactly how this new evidence might have affected the trial judge's carefully calibrated analysis. But that is not the test. The question is whether the new evidence could have affected the result — and I am satisfied that it could have.

(3) Conclusion on Palmer

[ 165 ] Accordingly, on a properly flexible application of Palmer, I would admit the new evidence. I see no reason why the interest in "finality and order", to which my colleague refers numerous times, should have more weight in this appeal than the children's best interests, which are the paramount concern.

C. Proper Use of the New Evidence

[ 166 ] I agree with the Office of the Children's Lawyer that the real concern with the new evidence in this appeal is not about appellate courts having up-to-date information on current circumstances which may affect a child's welfare. Rather, the issue is how an appellate court should use such evidence if it is properly admitted.

[ 167 ] The parties agree that an appellate court admitting further evidence in child custody matters may use that evidence in one of two ways: (1) to justify remanding the matter to the trial court for reconsideration of the child's best interests in light of the new evidence; or (2) to itself reassess the child's best interests in light of the new evidence.

[ 168 ] The mother concedes that if the new evidence is admitted, "the matter should [be] remitted to the trial judge because. . . he ha[s] 'extensive knowledge of this family and [these] child[ren]'" (A.F., at para. 143). I agree with the mother's concession. In my view, while the Court of Appeal was correct to admit this evidence, it should not have used the new evidence regarding the father's financial situation as a pretext to substitute its own assessment of the child's best interests for that of the trial judge.

[ 169 ] As this Court held in Hickey v. Hickey, [1999] 2 S.C.R. 518, appellate courts are not entitled to overturn trial court decisions in family law matters "simply because [they] would have made a different decision or balanced the factors differently": para. 11. Even where additional evidence is admitted on appeal, the appellate court must remain deferential to the trial judge's factual findings.

[ 170 ] The Court of Appeal accordingly erred in making its own determination based on the new evidence. Moreover, I agree with the father that finality, although important, should not tie the hands of a reviewing court when the children's best interests are at stake. The appropriate course is to remit the matter to the trial judge for reconsideration.

III. Disposition

[ 171 ] For the foregoing reasons, I would admit the new evidence and allow the appeal in part, with costs to the father in this Court and in the court below.

[ 172 ] In the result, I would remand the appeal to the trial court for reconsideration of the children's best interests in light of the new evidence.

Appeal allowed with costs throughout, Côté J. dissenting in part.

Solicitors

Solicitors for the appellant: Power Law, Ottawa.

Solicitors for the respondent: Georgialee Lang & Associates, Vancouver.

Solicitor for the intervener the Office of the Children's Lawyer: Office of the Children's Lawyer, Toronto.

Solicitors for the interveners the West Coast Legal Education and Action Fund Association and the Rise Women's Legal Centre: Hunter Litigation Chambers, Vancouver; West Coast Legal Education and Action Fund Association, Vancouver; Rise Women's Legal Centre, Vancouver.