Vancouver Family Law Appeal Lawyers know that special and strict rules apply to family law appeals whether they are family law appeals from the Provincial Family Court or Supreme Court of BC. Lorne N. MacLean, QC leads our family law appeal team in arguing for and against appeals from trial decisions. We have 5 offices in BC as well as one in downtown Calgary. Call us toll free at 1-877-602-9900 if you want tenacious and savvy family lawyers in your corner.
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So how is an family law appeal argued? Our Vancouver Family Law Appeal Lawyers understand that over 1/3 of appeals are successful. However, an appeal is not a new trial or a chance to submit new evidence except in rare circumstances. A recent BC Court of Appeal decision provides a good explanation of how an appeal is to be conducted. The court warned appeals cannot be allowed to devolve into an attempt to make up for deficiencies in a party’s trial case in the court below.
In Kane v. Proffitt, 2018 BCCA 106 the Court of Appeal stated:
[48] These provisions of the FLA and the SCFR establish that an appeal from an order of the Provincial Court is conducted on the record that was established before the trial judge, and that the tendering of new evidence, in whatever form permitted, requires leave of the Court. These rules do not change or abolish the common law legal tests for granting leave to admit fresh evidence under the test in Palmer at 775‒776, or new evidence under the more stringent test in Jens at paras. 23‒30.
[49] The distinction between the two legal tests was explained in Jens. Fresh evidence is evidence that existed at the time of the trial, but for various reasons could not be put before the court. Its admission on appeal is subject to the four-part Palmer test, which requires the applicant to demonstrate that the evidence: (1) was not discoverable by reasonable diligence before the end of the trial; (2) is relevant in that it bears upon a decisive or potentially decisive issue in the trial; (3) is credible; and (4) if believed, it could reasonably, when taken with the other evidence, be expected to have affected the result. The Court in Jens also noted (at para. 30) that in family law matters the approach to admitting fresh evidence is “slightly more elastic” in the sense that fresh evidence will be admitted if it is found to be in the interests of justice to do so (citing Luney v. Luney, 2007 BCCA 567 at para. 31 and Shabaga v. Shabaga (1992), 75 B.C.L.R. (2d) 128 (C.A.) at paras. 14‒15).
[50] In contrast, new evidence is evidence that came into existence only after the trial. It is only admitted in rare circumstances, such as where a trial judge has made assumptions about future events and then, before the appeal is heard, those assumptions are discovered to have been incorrect: North Vancouver (District) v. Lunde (1998), 60 B.C.L.R. (3d) 201 (C.A.) at para. 26. The rationale for the stringent approach to the admission of new evidence is that it has the potential to undermine the need for certainty and finality of litigation by inviting an appeal court “to apply different laws to different facts than those which confronted the trial judge’”: McCaffrey v. Paleolog, 2011 BCCA 378 at para. 62, quoting from Lambert J.A. in Lunde at para. 26. As the Court observed in Scott at para. 25, “[a]lthough events that occur after trial may affect the issues between the parties, matters must be reviewed as they stood at the time of trial; to do so otherwise would offend the principle of finality” (emphasis in original).
[51] The admission of fresh or new evidence in an appeal must be approached with caution. As this Court observed in Stav v. Stav, 2012 BCCA 154:
[32] …Allowing such evidence without structure or limits takes an appeal beyond the record of the trial, and beyond the error-seeking function of the Court, with attendant uncertainty and expense. It also has the potential of giving a party the opportunity to make up for deficiencies in his or her case at trial.
If you have a tough family law case, talk with us early on to see if our team is right for you. If you have obtained a judgment you think is wrong it is imperative you call our top rated* Vancouver Family Law Appeal Lawyers immediately toll free across Bc at 1-877-602-9900.
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