Written by William Huang and edited by Uphar Dhaliwal
In family law, the stakes are high. Decisions about parenting, relocation, and children’s best interests are often complex, emotional, and life-changing.
That is why the Supreme Court of Canada’s 2022 decision in Barendregt v. Grebliunas is such an important reminder: you must act diligently and present all relevant evidence during the trial, because if you wait until appeal,
it may be too late.
What Happened in this Case?
In Barendregt v. Grebliunas, a mother asked the court for permission to relocate with her children to a different town after separating from their father. At trial, the judge decided she could relocate.
After the trial, the father bought the family home and argued that this changed everything. He wanted to introduce this new fact as fresh evidence on appeal. The B.C. Court of Appeal allowed it, reversed the trial decision, and denied the relocation.
The Supreme Court of Canada disagreed. It said the new evidence should not have been allowed, and it restored the trial decision in favour of the mother.
Appeals vs. Variation Applications
A key part of the decision is the Supreme Court’s explanation of the difference between an appeal and a variation proceeding, and the importance that these two remain distinct.
An appeal is not a second trial, especially in parenting cases where finality is of paramount importance. It is a legal review of the original decision to determine whether the judge made an error.
The Supreme Court emphasized that if a party wants to introduce new evidence on appeal, they must show that they could not have presented it during trial despite acting with due diligence. If circumstances change after trial, the correct path is to bring a variation application.
A variation application is used in family law when one party believes that something significant has changed after a court order was made. In an application to vary a parenting order, the applying party would need to show that:
- There has been a material change in the circumstances of the child or the parents since the original parenting order was made.
- The change could not reasonably have been anticipated at the time of the original order.
- The proposed variation is in the best interests of the child.
In Barendregt, evidence about the father’s ability to purchase the family home could have been raised at trial but the father chose not to do so. As a result, that evidence is not admissible in an appeal and cannot, on its own, give rise to a variation application.
The Role of Family Violence in Parenting Decisions
The Supreme Court in Barendregt also reaffirmed that the best interests of the child are determined through a highly contextual analysis, reflecting the multitude of factors that may impinge on a child’s well-being. Among these, family violence is a significant factor.
The court emphasized that judges must consider any history of family violence, and its impact on the ability and willingness of the person responsible to meet the child’s needs. It rejected the idea that domestic abuse has no effect on children, calling such a view “untenable.”
Research shows that children exposed to family violence, whether directly or indirectly, are at risk of serious emotional and behavioural harm. This includes witnessing an incident, experiencing its aftermath, or even just overhearing conflict.
Critically, the court acknowledged that family violence often occurs behind closed doors and may lack independent corroboration. Therefore, even a single proven incident can raise safety concerns and heighten the importance of limiting contact or ensuring protective supports are in place.]
The Takeaway
If you are going through a family law dispute, especially one involving parenting or relocation decisions, it is critical to understand that trial is your main opportunity to present all relevant evidence. Courts expect each party to act with due diligence, meaning you must do everything reasonably possible to gather and present important facts before the trial ends.
The Barendregt case also reminds us that judges at trial are best positioned to make decisions about your children’s best interests because they hear the full story and assess the credibility of each parent firsthand. This includes assessing allegations of family violence, even when there is limited corroboration. The factual findings of trial judges are warranted deference on appeal; therefore, it is critically important to be fully prepared the first time.
If you are facing a family law matter, our team at Dhanu Dhaliwal Law Group can help you build a strong, complete case so nothing important is left out when it matters most.
