12.68: Evidence
12.70: Powers of Court on appeal
12.71: Appeal from decision of Court of Queen’s Bench sitting as appeal court

Case Summary

Following a Trial in which the Provincial Court granted a variance of a parenting Order and allowed the child to move to Ontario with the Respondent, Crandall, the Appellant, Wandler appealed to the Court of Queen’s Bench. The Court of Queen’s Bench referred to Rule 12.70 and directed that the parties submit affidavit evidence prior to appearing for the Appeal. The Trial Judge’s Decision was overturned on the basis that there was no material change is circumstance sufficient to vary the Order. Crandall was granted leave to Appeal to the Court of Appeal.

The Court of Appeal clarified that Rule 12.71(1) provides that no appeal lies to the Court of Appeal from a decision of the Court of Queen’s Bench sitting as an Appeal Court for decisions under the Family Law Act, SA 2003, c F-4.5 except on a question of law or jurisdiction, or both. The Court noted further that, though Rule 12.68 provides that an Appeal Judge may direct that the parties adduce further evidence, an Application for further evidence must provide some basis for why the viva voce evidence at Trial was insufficient, and why additional evidence is necessary. The Court stated:

Whatever procedure ordered by an appeal judge outside the normal process of an appeal on the record should contain sufficient safeguards and direction to produce a fair and just result.

The Court of Appeal concluded that the Trial Judge made no error. As such, the Appeal was granted and the initial Trial Decision restored.

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