Case: Gupta v. Kumar, 2023 BCCA 106 (CanLII)

Keywords: family law; date of separation; additional evidence


In 2010, the parties enter a “marriage-like” relationship within the meaning of the B.C. Family Law Act, S.B.C. 2011, c. 25. In 2018, the Appellant files a Notice of Family Claim seeking an unequal division of family property and family debt. (See para. 1).

A dispute arises as to the date of separation. The Appellant says 2016; the Respondent says 2013. The Trial Judge (Morellato J.) agrees with the Respondent as to the date of separation. (See para. 1).

The Appellant alleges the Trial Judge erred by, inter alia, “ignoring or overlooking essential evidence”. She also applies to adduce “additional evidence” on appeal. (See para. 12). The Court of Appeal (Fitch, Hunter, and Voith, JJ.A.), applying the test set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), dismisses the application for additional evidence. (See para. 27). For the Court of Appeal, there is no error that warrants appellate intervention: “it was open to the trial judge on the evidence as a whole to conclude that the test for separation was met by February 2013.” (See para. 31).


The Court of Appeal observed that whether parties to a marriage-like relationship have legally separated is a question of mixed fact and law. (See para. 13; Der Woon v. Zadorozny, 2020 BCCA 95 at para. 11).

As described by the Court of Appeal, the legal test for separation under the Family Law Act involves consideration of a “range of factors”, including “whether the generally accepted characteristics of marriage continue following a physical separation”. (See para. 13; Nearing v. Sauer, 2015 BCSC 58 at para. 56; see also Moldowich v. Penttinen, 1980 CanLII 1537 (ON SC)). For the Court of Appeal, it is not necessary that both parties agree to separate, so long as at least one of the parties to the marriage-like relationship has demonstrated their intention “by word or action”. (See para. 13).

Here, the Court of Appeal described “the facts necessary to provide context for the judgment”. (See para. 2). Those facts include that the parties had engaged in “an argument that became heated and culminated with [the Respondent] slapping [the Appellant]”. (See para. 3). Shortly thereafter, in February of 2013, the Appellant moved out of the Respondent’s home. (See para. 4). From a practical perspective, does the slap and subsequent physical separation of the parties constitute an intention to legally separate “by word or action”?

The Court of Appeal found no basis to interfere with the Trial Judge’s conclusion that the parties’ date of separation was 2013, noting that “an appellate court will intervene on a factual finding only when there is a clear error that is material to the outcome.” (See para. 15). Although the Appellant sought to draw the Court’s attention to “evidence that she says supported her version of events” and argued the Trial Judge had placed “greater weight on [the Respondent’s] evidence than on hers”, the Court indicated that it was “not open to this Court to reweigh the evidence or retry the case”. (See paras. 28-29).

The Appellant brought an application to adduce “additional evidence” to supplement the evidence considered by the Trial Judge. In this case, the Court of Appeal applied the four “Palmer” criteria, which must be met for the Court to consider “additional evidence”:

    • the evidence could not, by the exercise of due diligence, have been obtained for the trial;
    • the evidence must be relevant in that it bears upon a decisive or potentially decisive issue;
    • the evidence must be credible in the sense that it is reasonably capable of belief; and
    • the evidence must be such that if believed, could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. (See para. 19; Palmer v. The Queen, 1979 CanLII 8 (SCC) at 775).

The description of such evidence as “additional” rather than “fresh” or “new” is interesting when one considers the recent discussion by the Supreme Court of Canada in Barendregt v. Grebliunas, 2022 SCC 22 at paras. 48-55.

Importantly, Barendregt was an appeal from a decision of the Court of Appeal for British Columbia, and which was written by Voith J.A. (See Barendregt v. Grebliunas, 2021 BCCA 11 (CanLII)). The Supreme Court of Canada found the Court of Appeal had erred by outlining a distinct test for “new” evidence (i.e. one which dispensed with the “due diligence” requirement from Palmer), and noted that applying such a test “failed to safeguard the delicate balance between finality and order, and the interest in a just result”. (See para. 54).

Citing Barendregt, the Court of Appeal determined that each piece of “additional evidence” brought forward by the Appellant could not satisfy the due diligence requirement. Since the evidence “dates from 2016 or earlier, a full five years before the trial”, the Court of Appeal was “not satisfied that it could not have been available…had Ms. Gupta exercised due diligence”. Moreover, the Court of Appeal determined that none of the “additional evidence” could have affected the result at trial. (See para. 26).

Finally, the Court of Appeal noted the Appellant’s request to have “another chance to share her story”, and affirmed that “disappointed litigants are not entitled to a second opportunity to present their case” in the absence of a “material error” warranting appellate intervention. (See para. 32).

Counsel for the Appellant: Hemlata Gupta, appearing in person

Counsel for the Respondent: James Parker (Nathanson, Schachter & Thompson LLP, Vancouver)

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