The Applicant husband, the Respondent to an Appeal, sought an Order striking portions of the Appellant’s factum and extracts of key evidence which reproduced material not in evidence before the Trial Judge. Justice Paperny noted that Rule 14.70 states that Appeals must be determined on the basis of the record of the proceedings below. The contested material was not entered as evidence in the proceedings below, and accordingly did not form part of the record.

The wife argued that the evidence was relevant and was of probative value, and should therefore be included in the Appeal record in any event. Paperny J.A. observed that Rule 14.70 does not afford discretion to include new evidence on the record before the Court on appeal. In the result, the portions of the factum and extracts of key evidence were struck.