12.61: Appeal from Provincial Court order to Court of Queen’s Bench
12.62: Duty of court clerks
12.68: Evidence
12.70: Powers of Court on appeal

Case Summary

This was an Appeal of a Provincial Court Order pursuant to Rule 12.61 and section 89 of the Family Law Act, SA 2000, c F-4.5, relating to child support, for which leave to file a Notice of Appeal with the Court of King’s Bench had been previously granted.

In oral argument, both the Appellant and Respondent gave submissions which were indirectly or directly attempting to provide supplemental evidence not before the Provincial Court Judge. In accordance with Rule 12.68, an Appeal of a Provincial Court Decision is normally an Appeal on the record, not a hearing de novo as it provides that only 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 of the hearing of the Appeal. No other evidence may be considered by the Court unless the Court otherwise orders. In order to admit new evidence, an Application to admit fresh evidence on Appeal must be filed pursuant to Rule 12.68, which Application must be supported with argument as to why the record contemplated by Rule 12.62(2) is insufficient. The Court noted that neither Party met the test for fresh evidence and, to the extent any of the submissions constituted evidence, they were not given any weight.

Ultimately, the Court considered the merits of the Appeal and concluded that the Provincial Court Judge did not make an error or, alternatively, did not make an error justifying interference on Appeal. As such, the Court confirmed the Order in accordance with Rule 12.70.

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