The Appellants opposed a Provincial Court Order which increased the Respondent’s parenting time (the “Order”). The Appeal was brought under Rule 12.61 and section 89 of the Family Law Act, SA 2003, c F-4.5 (“FLA”). Justice Marion dismissed the Appeal.

Justice Marion noted that Appeals of Provincial Court Decisions under section 89 of the FLA are on the record, and are not de novo. For this reason, Rule 12.68 stipulates that “documents provided by the clerk of the Provincial Court pursuant to rule 12.62(2) and the transcript of the hearing before the Provincial Court form the record for the hearing of the appeal, and no other evidence may be considered by the Court unless otherwise ordered by the Court”.

Under Rule 12.62(2), the Provincial Court Clerk must “forward the order, together with filed documents relating to the order, including exhibits, to the Court of Queen’s Bench court clerk”.

Here, the Parties relied on significant evidence from the Provincial Court file going to the conduct of the matter after the date of the Order. Justice Marion held that while this information did not form part of the Appeal record, it can ultimately be relevant to the Court’s exercise of discretion under Rule 12.70.