Written on behalf of Feigenbaum Consulting
When people with children go through a separation or divorce, several issues must be resolved. These include but are not limited to parenting time with the children, spousal support, child support, and the division of property.
While topics such as division of property can generally be sorted out with some finality (unless hidden assets are uncovered), topics such as support and parenting time might be subject to change depending on the situation of the parents. There are a few avenues a person may take to change a court order. One of these is by appealing a decision which issued the order, while the other is applying for a motion to change the order. While the former can only be done within a prescribed period of time, the latter is generally available at any time.
The Supreme Court of Canada recently weighed in on which avenue is appropriate if a party to litigation believes the facts were not properly presented to the court during a trial and that the facts may lead to a different outcome.
Parents at an impasse over where children should live
In the recent case, the parents met in British Columbia in 2011 and began a relationship. The mother moved to Kelowna, where the father had already been living. They quickly married, bought a house and had two children. The relationship came to an end in 2018 after the father committed an assault on the mother. She left Kelowna and moved about 10 hours south to her hometown of Telkwa.
Following their separation, the parents reached an informal agreement in which the mother would travel to Kelowna every other week to spend a week with the children. However, these visits never occurred. The mother then requested an order that the children live primarily with her in Telkwa. When her request was denied, she told the court she would move back to Kelowna.
The trial judge determined that the children should relocate to live with their mother for two reasons. The first was that the father had been violent towards the mother, and this resulted in a very acrimonious relationship between the two. The second was that the trial judge found the father had not made his Kelowna home suitable for children to live in and did not appear to have the resources to make the necessary improvements to the home.
Trial judge’s decision is reversed on appeal
The father had asked the Court of Appeal to allow him to introduce additional evidence pertaining to his finances and the livability of his home. The Court of Appeal considered this evidence and asked whether this new evidence would negate one of the trial judge’s main reasons for reaching a decision. The Court found that since the ability for the father to provide a suitable home for the children was one of the main reasons the children were sent to live with their mother. The new evidence led the Court to believe the home was suitable, and that the trial decision should be overturned.
The Supreme Court of Canada restored the trial judge’s finding
The mother appealed the Court of Appeal decision. The Supreme Court of Canada was of the opinion that the Court of Appeal had applied the incorrect test for determining whether to allow fresh evidence. The correct test, articulated in a case called Palmer v The Queen, has four factors, all of which must be met for the party seeking to introduce new evidence to be successful.
The first element of the test asks whether the evidence the father wanted to introduce could have been available to him at the time of the trial through the exercise of due diligence. This means that either party should only be allowed to introduce new evidence in an appeal that could not have been produced at the time of the trial. In this case, the Court found the father could have provided the new evidence at trial, but for one reason or another, failed to do so. As the father failed the first step of the test, the Court did not have to consider the other steps to the test, which ask whether the new evidence is relevant, credible, and could impact the outcome of the issue.
The Court also addressed the importance of finality, especially when it comes to family law issues involving children. Had the Court of Appeal applied the Palmer test when it heard the case, there would have been no need for the children to experience a flip-flopping in the decisions about where they will live.
Despite the importance of finality, the Court left the door open for the father to pursue his case in a different fashion. Variations to orders related to where children live can be sought at any time by either parent through a motion to change the order. So, in this case, the father can still pursue a motion rather than an appeal to bring the new evidence of his updated living situation into consideration. The same can be said for other changes as well, such as when a parent experiences a change in employment that might lead to higher or lower child support payments.
Contact Feigenbaum Law in Toronto for experienced advice on family law matters
At Feigenbaum Law, we understand the importance of ensuring your children are provided for after separation and the many issues that parents have to work through to ensure the best for their children. Mark Feigenbaum provides clients with reliable and strategic advice in family law disputes to help them move forward with as much financial stability as possible, keeping clients’ best interests in mind every step of the way, including advice aimed to keep clients from pursuing risky litigation tactics, such as those we saw today. Contact us online or by phone at 905-695-1269 (toll-free at 877-275-4792) to book a consultation.