Fresh Evidence or a Material Change In Circumstances – A Critical Difference

In matters of parenting and access, Orders from the Court are rarely ever permanent.  Even Final Orders of the Court are subject to review and potentially variation if the Court finds that there has been a material change in the means, needs, and circumstances of the child(ren) – what the Courts often refer to as a “Material Change in Circumstances.”  The rationale is that if there has been a material change in circumstances affecting the child, whatever parenting arrangement that is currently in place may no longer reflect the best interests of the child(ren).

The Material Change in Circumstances is often the first matter that the Courts must consider in determining whether or not to vary a parenting arrangement – there must be the presence of a Material Change in Circumstances before the Court can look at what is in the best interests of the child(ren).  This is an important consideration because the lack or presence of a Material Change in Circumstances will dictate whether a parent’s application to change the parenting arrangement may proceed or not.

However, we have recently noticed that the Court of Appeal in Alberta has created a potential inconsistency in the characterization of whether there has been a Material Change in Circumstances or whether the new circumstances are instead considered “Fresh Evidence”.

Fresh Evidence, in general, is evidence that was not before the Trial Judge, but which one party to an Appeal wishes for the Appeal Justices to consider.  Typically, an Appeal Court is limited to considering the Trial Record – the evidence that was before the Trial Judge – and will not consider any other evidence or information that was not heard by the Trial Court.  However, in certain circumstances, if a party to an Appeal is able to satisfy the Appeal Court that the Fresh Evidence meets a test that was set out in the Supreme Court of Canada Case of Palmer v. The Queen, [1980] 1 SCR 759, 1979, the Court has the discretion to allow the evidence to be led on Appeal.  Simply, the test requires that:

• “The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial”;
• “The evidence must be credible in the sense that it is reasonably capable of belief”; and
• “It must be such that if believed it could reasonably, when taken with the other evi­dence adduced at trial, be expected to have affected the result.”

The test as set out above was originally derived in a criminal matter; since then, the Courts have held that in family matters, the test is slightly more flexible, with the focus on the interests of justice.

Unfortunately, there has been no clear statement from the Courts in Alberta, regarding a distinction between “Fresh Evidence”, which is evidence that was in existence at the time of the trial, but which could not be put before the Courts, and “New Evidence”, which is evidence relating to matters that happened after the trial and did not exist at the time of trial.

Unlike Alberta, the Courts in British Columbia have made clear statements that it is Fresh Evidence that can potentially be considered at trial, but that the test for Fresh Evidence does not apply to New Evidence, and that New Evidence can be admitted, but only rarely on Appeal.

This distinction is critical as Fresh Evidence is evidence that “could have” been before the Trial Court, whereas New Evidence is evidence that arose subsequent to the trial, and could be seen as evidence of a Material Change in Circumstances.  As an Appeal Court is predominantly restricted to reviewing the decisions of the Trial Courts, it makes sense that they may, in limited circumstances consider Fresh Evidence that “could have” been before the Trial Court as this is relevant to the decision that the Trial Court might have made.  However, to consider New Evidence at the level of Appeal is to take on the role of the Trial Court and start weighing evidence that has occurred subsequent to Trial – effectively assuming the role of determining whether there has been a Material Change in Circumstances that would warrant varying the Order of the Trial Court rather than confining deliberation to appealable errors of the Trial Court.

We can see where the lack of direction from the Court of Appeal in Alberta, in these circumstances, has created inconsistencies by looking at two recent cases.

In 2016 the Court of Appeal heard an Appeal of a trial decision on a mobility matter and after considering the test for Fresh Evidence, allowed the Mother to lead what could rightly be described as “New Evidence” on Appeal.  In McAlpine v. Leason, 2016 ABCA 153 the Mother applied to relocate from Calgary with her daughter; the father opposed.  After a two-week trial, the Trial Judge denied the Mother’s application.  However, the Trial Judge took over 9 months to issue his decision.  By that time the Mother had become pregnant with another child from a new partner.  The mother appealed the decision of the Trial Judge.  By the time the matter was heard by the Court of Appeal, the new child was over 4 months old.

While the Court in McAlpine held that the Trial Judge made an analytical error, they also strongly stressed the impact of the birth of the new child on the matter, holding that it would not be in the best interests of the original child to be apart from her half sibling, nor would the Mother be able to visit Calgary as frequently to see her oldest child.  The Court of Appeal held that evidence that did not exist at the time of trial was important for consideration, and quite determinative of the issue.  As a result, rather than returning the matter to the Trial Court for a re-trial on the new circumstances, in the face of the error from the lower Court, instead the Court overturned the Trial Judge’s decision and allowed the Mother to relocate the child from Calgary.  In so doing, the Court of Appeal effectively took on the role of the Trial Court, determining the best interests of the Child on the basis of the New Evidence that was put before the Court on Appeal, but without actually providing the parties the proper process that a Trial Court would have – that of holding full hearing of the evidence.

Viewing this case, it would appear that the Court of Appeal in Alberta does not draw the distinction between “Fresh Evidence” and “New Evidence”.  However, in the more recent case of Wandler v. Crandall, 2017 ABCA 391, the Court of Appeal heard another mobility decision.  In this matter, a child was in a shared parenting arrangement with her parents when the Mother wished to relocate with the Child from Calgary to Ontario.  The Trial Judge at Provincial Court permitted to the Mother to move, but on Appeal at the Court of Queen’s Bench, the sitting Justice overturned the Provincial Court Decision.  The Mother Appealed to the Court of Appeal.  By the time that the matter was heard by the Court of Appeal, the Child had been residing in her Father’s full time care for over a year, while the Mother resided in Ontario.  The Father tried to put this change in the parenting arrangement before the Court.  The Court held that the Trial Decision of the Provincial Court Judge was correct and therefore did not have to consider this new evidence of the Father; however, they did make comments on whether they would have considered it in any event.  Quite opposite to the decision of the Court in McAlpine, in Wandler the Court of Appeal stated “…it is not for the Court of Appeal to determine afresh the best interests of the child and where the child ought to live.  The parties had a trial on this very issue approximately a year ago where the trial judge weighed the evidence and determined that the best interests of the child were for the child to move to Ontario to be with her mother.”

As a result, the Case Law from the Court of Appeal is inconsistent:

• the Court of Appeal in McAlpine held that the post-trial birth of a half-sister was relevant evidence to be considered by the Court in determining the best interests of a Child on a relocation application; but
• in Wandler, the Court of Appeal held that the significant post-trial change in a parenting arrangement, whereby the Child began living full-time with the Father, was not relevant for consideration when determining whether the child should be relocated, well over a year later, to the Mother’s care in Ontario.

It is clear that the decisions and comments of the Court are inconsistent in their application of the “Fresh Evidence” test – particularly when one considers that the evidence to be led in Wandler, as it related to a status quo and therefore a material change in circumstances, would seem to be more compelling than that led in McAlpine.

Perhaps the solution to the above inconsistency lies in the very brief comment of the Court of Appeal in the very recent case of S.E. v Y.L., 2017 ABCA 417.  In this case a Father had applied to relocate with his teenage children to British Columbia.  The youngest child resided with the Father and the eldest was receiving mental health care; the Mother only had supervised access to the Children.  While the Court of Appeal upheld the decision of the Trial Justice allowing the Father to relocate with the children, they make a comment at the very end of the decision that bears some scrutiny.  After pronouncing that the decision of the Trial Justice was not to be disturbed, they state:  “If the order needs to be refined, or varied to account for changed circumstances, that should be done in the Court of Queen’s Bench.”

There are no further comments provided, nor explanatory information.  However, what can be gleaned from this case is that between the time of the Trial decision and the Court of Appeal hearing the matter, the Father had relocated to British Columbia.  The Order of the Trial Judge was made prior to the Father relocating and would have reflected the circumstances of the Father residing in Alberta.

While it is likely not similar in scope to the McAlpine and Wandler decision, the recognition from the Court of the Appeal that any variation of the Order of the Trial Justice had to be undertaken at the Court of Queen’s Bench could resolve the inconsistency we see in the above two cases.

In both McAlpine and Wandler the evidence before the Court was New Evidence – it was evidence of matters that occurred subsequent to the Trial decision that was germane to the best interests of the children in those cases.  Such evidence could more rightly be considered evidence of a change in the circumstances of the child.

Given that the New Evidence is really nothing more than circumstances that might fit within the definition of a Material Change in Circumstances, it would seem that the proper procedure is not to raise it at Appeal, but to simply bring a new Application at the level of Court where the Trial decision was made, for a variation of the Trial Order.  This would resolve the issue of any inconsistent treatment of New Evidence at the Court of Appeal.  Further, it would provide the venue for more appropriately addressing whether the New Evidence was really a Material Change in Circumstances that was unforeseen by the parties at the time of the Trial Order, or just a change in circumstances that could have been foreseen and therefore not justification for a variation application.

This is properly the domain of the Trial Courts, and McAlpine appears to justify this.  It is debatable whether the change in circumstances in McAlpine could really have been considered “Material” given that repartnering and having another child are typically not “unforeseen” – the Court of Appeal has even stated this in the case of Ryan v. Ryan, 2008 ABCA 54.  In the ordinary course of litigation, a Trial Court would hear evidence from the parties, consider the circumstances and make a determination as to whether “new evidence” could be considered a Material Change in Circumstances.  However, as was demonstrated in McAlpine, if this New Evidence is considered as Fresh Evidence by the Court of Appeal, the Court will not engage in a hearing of evidence, a review of the circumstances, and a final determination of whether it satisfies the test for a Material Change in Circumstances.  Rather, the Court will instead apply the test from Palmer v. The Queen to determine its admissibility.  This is the improper test for whether new circumstances can rightly be considered a “material change in the needs, means, and circumstances of the child,” and as a result, the consideration of New Evidence has no place at the Court of Appeal, and should rightly be heard by the Trial Courts.

Of course, the possible fallout of such a procedure would be to effectively make any decision of the Court of Appeal relatively moot in these circumstances where any substantial period of time has passed for a Child.  It would not matter whether the original Trial decision is upheld by the Court of Appeal as the Trial Court would have the authority to make a new decision on the basis of the New Evidence, and the matter should rightly be referred back to the Trial Court to allow this determination to be made.  However, if such new evidence satisfied the test for a Material Change in Circumstances, given the delays in having matters fully heard at any level of Court in Alberta, the parties could ostensibly keep the matter tied up in perennial litigation.

Such a situation cannot be permitted either; parties to litigation, and more importantly their children, need finality and certainty through the Courts.   However, perhaps the reality of situations like this potentially arising will serve to communicate to Parliament the crucial need for greater judicial resources and access to hearings to reduce the backlog of cases so parties can have their matters heard in a timely manner and the best interests of children can be addressed in real time.