12.68: Evidence
12.70: Powers of Court on appeal

Case Summary

Following a Trial in Provincial Court, the father in a family law matter appealed rulings with respect to parenting time and decision making. Jeffrey J. considered Rule 12.70, which sets out the Court’s options when reviewing the Decision of the Provincial Court in a family matter. His Lordship noted that Rule 12.70 provides that, after hearing the Appeal, the Court may: confirm the Order of the Provincial Court; set aside the Order of the Provincial Court; make any Order that the Provincial Court would have made; or direct the Provincial Court to conduct a new hearing. Jeffrey J. stated that, on appeal, the Court should give substantial deference to the findings of Provincial Court Judges in family law cases.

The Appellant, arguing that the Trial result was not in the best interest of the child, sought to submit a new Affidavit from a ‘parenting expert’. Justice Jeffrey noted that Rule 12.68 provides that the documents provided by the Provincial Court form the record in the Appeal, and that no other or new evidence can be considered unless otherwise ordered by the Court. However, in prior hearings, the Court of Queen’s Bench had allowed the new affidavit evidence to be admitted. Jeffrey J. therefore determined that the new evidence did form part of the Appeal Record, but stated that it should not have been admitted at Trial before the Provincial Court Judge.

Jeffrey J. dismissed the Appeal and confirmed the Order of the Provincial Court with the exception of a “possible slip” by the Provincial Court Judge, but held that the issue should be sent back to the Provincial Court Judge who heard the Trial as permitted under Rule 12.70.

View CanLII Details