“A party in a family law appeal may bring a motion to admit further evidence. That motion may be brought on the appeal of a variety of proceedings, including the appeal of an arbitration decision. See Family Law Rules, Rule 38(29) and (46) as well as section 134(4)(b) of the Courts of Justice Act.
The test for the admission of fresh evidence on an appeal is set out in Palmer, supra as follows:
a) The evidence should be admitted if it could not have been adduced at trial by due diligence;
b) The evidence must bear upon a potentially decisive issue in the trial;
c) The evidence must be credible in the sense that it is reasonably capable of belief; and
d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
The Ontario Court of Appeal has long accepted that a more flexible approach to fresh evidence is appropriate in cases involving the welfare of children. See Decaen v. Decaen 2013 ONCA 218 and H.E. v. M.M. 2015 ONCA 813. The reasons that the Courts adopt this more flexible approach are helpfully summarized in Kurz J.’s decision in Spadacini-Kelvava v. Kelava 2020 ONSC 3277 at paras. 67 and following.
The manner in which this more flexible approach should be applied was outlined by Laskin J.A. in Ojeikere v. Ojeikere 2018 ONCA 372 (at para 48). The proposed fresh evidence should be admitted if it:
a) Is credible;
b) Could not have been obtained by reasonable diligence before trial or motion;
c) Would likely be conclusive of an issue on the appeal.
When these branches of the test are considered, it must be remembered that they are designed to be more flexible than the Palmer test. Therefore, the elements of the test that are similar to Palmer, such as credibility and whether the evidence would be conclusive of an issue on the appeal, should not be applied more strictly than they would be if the Palmer test was applied.”