Understanding Barendregt v. Grebliunas: Standards for New Evidence on Appeal

By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration

In the ever-evolving landscape of family law, the Supreme Court of Canada’s decision in Barendregt v. Grebliunas, 2022 SCC 22, stands out as a pivotal ruling with significant implications for litigants and practitioners alike. This case delves into the nuanced area of introducing new evidence in family law appeals, offering clarity and guidance in what can often be a complex legal process.

Background of the Case

Barendregt v. Grebliunas centered around a custody dispute involving a couple from British Columbia who separated in 2018. The primary issue at trial was the mother’s request to relocate the children to Telkwa, where her parents resided, a request that was granted by the trial court. The court’s decision was partly influenced by the condition of the family home in Kelowna, where the father resided, which was in need of significant repairs.

The Twist: Introduction of New Evidence on Appeal

The father, dissatisfied with the trial court’s decision, appealed and sought to introduce new evidence on appeal. He claimed that his financial situation had changed post-trial, and the family home in Kelowna had been renovated and was now more suitable for housing the children. This new evidence was pivotal to his appeal, as it challenged the trial court’s reasoning regarding the children’s best interests.

The Supreme Court’s Analysis

The Supreme Court of Canada’s decision in this case provides a masterclass in the application of legal principles regarding new evidence on appeal. The Court reaffirmed the long-standing legal precedent set by Palmer v. The Queen1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, which outlines the criteria for admitting new evidence in appeals:

  1. The evidence could not have been obtained with due diligence for use at the trial.
  2. The evidence is relevant in that it bears on a decisive or potentially decisive issue in the trial.
  3. The evidence is credible in the sense that it is reasonably capable of belief.
  4. The evidence is such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to affect the result.

The Court’s Ruling

Applying these criteria, the Supreme Court concluded that the father’s new evidence did not satisfy the first limb of the Palmer test. The evidence, pertaining to the father’s financial changes and the condition of the Kelowna home, could have been discovered with due diligence before or during the trial. As a result, the Court held that this new evidence should not have been considered by the Appeal Court.

Implications of the Decision

The decision in Barendregt v. Grebliunas underscores several critical points for family law practitioners:

  1. The Sanctity of the Trial Process: The ruling reinforces the principle that an appeal is not a new trial but a review of the original decision for errors.
  2. Rigorous Standards for New Evidence: The case highlights the stringent criteria that must be met to introduce new evidence on appeal. This serves as a caution for litigants and their counsel to ensure all relevant evidence is presented at the trial level.
  3. Due Diligence is Key: The decision emphasizes the importance of due diligence in family law proceedings. Parties must diligently gather and present all pertinent evidence during the trial to avoid complications in potential appeals.
  4. Children’s Best Interests: The ruling also reaffirms the paramountcy of children’s best interests in custody disputes. Changes in circumstances post-trial, unless they meet the strict criteria for new evidence, generally won’t alter a trial court’s decision made in the best interests of the child.
  5. Legal Precedent: The Supreme Court’s adherence to the Palmer v. The Queen criteria demonstrates the stability and predictability of legal principles governing family law appeals.


Barendregt v. Grebliunas is a landmark decision in Canadian family law, offering clarity on the complex issue of new evidence in appeals. It serves as a crucial reminder of the importance of thorough preparation and presentation of evidence at the trial level. For family law practitioners, this ruling is a valuable guide in advising clients and structuring their cases, ensuring that the focus remains on the best interests of the children involved, while adhering to the rigorous standards of appellate review.

Let’s continue to elevate the practice of family law in Ontario!

Connect with us on LinkedIn.

Cheryl Goldhart is a family law lawyer who can make a difference in resolving your family disputes.

  • Four Decades of Family Law Mastery: Cheryl’s extensive experience in family law spans nearly 40 years of practicing family law exclusively.
  • Counselling Credentials: Her Masters Degree in Counselling adds a compassionate and insightful approach to her practice.
  • Family Law Specialist, Law Society Certified: Indicative of her family law expertise, Cheryl is certified by the Law Society of Ontario as Family Law Specialist.
  • OAFM-Accredited Family Mediator: Cheryl is a trusted mediator with accreditation from the Ontario Association for Family Mediation.
  • Designated by ADR Institute: Cheryl holds a professional designation from Ontario’s ADR Institute as an ADR Professional, demonstrating her expertise as an arbitrator.
  • Accolades & Honours: She has been honoured with numerous honours and awards, including the prestigious Ontario Bar Association’s Award for Excellence in Family Law.

Legal Disclaimer: See Privacy Policy

Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Law Professional Corporation is not responsible for any actions taken based on the information presented in this blog.


Scroll to Top