Skip to content

Posts from the ‘evidence’ Category

Not All Internet Evidence is Created Equally

Not All Internet Evidence is Created Equally

Recently, I have touched on the issue of whether evidence taken from the Internet is reliable enough for the purpose of Family Law trials.

But as anyone knows who has ever spent time surfing the Internet – which is all of us — there are websites, and then there are websites.  Just because something is on the internet, certainly doesn’t mean that it’s reliable, fully accurate, or even remotely true.

How do courts grapple with determining the reliability of website information, and giving it the proper weight for evidentiary purposes?

In a recent immigration case called El Sayed v. Canada (Citizenship and Immigration), the applicant had objected to the fact that the Immigration Officer had apparently searched the applicant’s LinkedIn profile, and had made certain judgments about him that reflected negatively on his immigration application.

The court turned its focused attention on the issue of internet evidence reliability, citing approvingly from an earlier case:

With regard to the reliability of the Internet, I accept that in general, official web sites, which are developed and maintained by the organization itself, will provide more reliable information than unofficial web sites, which contain information about the organization but which are maintained by private persons or businesses.

In my opinion, official web sites of well-known organisations can provide reliable information that would be admissible as evidence … For example, it is evident that the official web site of the Supreme Court of Canada will provide an accurate version of the decisions of the Court.

As for unofficial web sites, I accept … that the reliability of the information obtained from an unofficial web site will depend on various factors which include careful assessment of its sources, independent corroboration, consideration as to whether it might have been modified from what was originally available and assessment of the objectivity of the person placing the information on-line. When these factors cannot be ascertained, little or no weight should be given to the information obtained from an unofficial web site.

The court added that this approach was approved in some subsequent Canadian decision, but in others the court still demanded expert testimony as to the reliability of the website information, before it would accept it as evidence for the trial or hearing.

The bottom line, is that courts know that everything you see on the internet is not true.  (Although I’m confident that they would approve of the Blogs on my website).

For the full text of the decisions, see:

El Sayed v. Canada (Citizenship and Immigration) 

ITV Technologies Inc. v. WIC Television Ltd.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Not All Internet Evidence is Created Equally

Not All Internet Evidence is Created Equally

Recently, I have touched on the issue of whether evidence taken from the Internet is reliable enough for the purpose of Family Law trials.

But as anyone knows who has ever spent time surfing the Internet – which is all of us – there are websites, and then there are websites. Just because something is on the internet, certainly doesn’t mean that it’s reliable, fully accurate, or even remotely true.

How do courts grapple with determining the reliability of website information, and giving it the proper weight for evidentiary purposes?

In a recent immigration case called El Sayed v. Canada (Citizenship and Immigration), the applicant had objected to the fact that the Immigration Officer had apparently searched the applicant’s LinkedIn profile, and had made certain judgments about him that reflected negatively on his immigration application.

The court turned its focused attention on the issue of internet evidence reliability, citing approvingly from an earlier case:

With regard to the reliability of the Internet, I accept that in general, official web sites, which are developed and maintained by the organization itself, will provide more reliable information than unofficial web sites, which contain information about the organization but which are maintained by private persons or businesses.

In my opinion, official web sites of well-known organisations can provide reliable information that would be admissible as evidence … For example, it is evident that the official web site of the Supreme Court of Canada will provide an accurate version of the decisions of the Court.

As for unofficial web sites, I accept … that the reliability of the information obtained from an unofficial web site will depend on various factors which include careful assessment of its sources, independent corroboration, consideration as to whether it might have been modified from what was originally available and assessment of the objectivity of the person placing the information on-line. When these factors cannot be ascertained, little or no weight should be given to the information obtained from an unofficial web site.

The court added that this approach was approved in some subsequent Canadian decision, but in others the court still demanded expert testimony as to the reliability of the website information, before it would accept it as evidence for the trial or hearing.

The bottom line, is that courts know that everything you see on the internet is not true. (Although I’m confident that they would approve of the Blogs on my website).

For the full text of the decisions, see:

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (CanLII)

ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056 (CanLII)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Evidence from the Internet – Is It Good Enough for Court?

Evidence from the Internet – Is It Good Enough for Court?

In a case I reported on recently called Caine v. Ferguson the father claimed that his income was too low for him to pay child support for his daughter. The court considered evidence designed to refute his claim, put forth by the opposing side and taken from various U.S. music-industry-specific websites. The court wrote:

[The lawyer] submitted that the [father] could be earning $35,000 per annum as a musician. In support of this argument, she attempted to introduce internet articles from two websites from the United States, called Payscale and Musician Wages.com.

The court reflected on the general trustworthiness of these kinds of tendered materials sourced from the Internet, and pointed out that the dependability will vary with their source and nature:

In [prior court cases, the court] permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However … I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination.

Ultimately, in this instance the court rejected the music-industry website evidence outright, stating:

The documents sought to be introduced here are much more problematic. There was no evidence led that the documents were from reputable sources …  No foundation was provided as to the qualifications of the writers of the documents. The articles were both from the United States. The author of the Musician Wages.com article is an associate conductor of a Broadway play. There was no evidence indicating that he would have any knowledge about what level of income a freelance musician could earn in Toronto. The articles were from 2007 and 2008 respectively. I did not admit the documents into evidence as they did not come close to achieving threshold reliability.

Although a court’s determination will vary from case-to-case, the question of the admissibility and reliability of internet evidence can arise in virtually all kinds of cases, not just those that spring from family disputes.

In fact, it came up squarely in a 2017 immigration case called El Sayed v. Canada (Citizenship and Immigration), where the court’s conclusions included a commonsense point: Information from official web sites, developed and maintained by the relevant organization itself, is more reliable than unofficial ones which contain information about the organization but which are maintained by private persons or businesses.

In a future blog post, I will discuss some of the other principles confirmed and summarized in that recent immigration case.

For the full text of the decisions, see:

Caine v. Ferguson, 2012 ONCJ 139 (CanLII)

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Canadian Justice System Rankles Canadian Justice

Canadian Justice System Rankles Canadian Justice

As I’ve reported in the past there has been no shortage of noteworthy decisions from Justice Pazaratz. The case of Chree v. Chree is one of several in which he critiques the Canadian justice system, this time for the shortcomings of what is essentially a bifurcated system.

The facts involved two separated parents who were now each living in different provinces. In such scenarios, Canadian law allows for one party in any single family law dispute to pursue certain proceedings and remedies in his or her home province, while the other party does the same in another province.   But the court order made by a judge in one jurisdiction must often be confirmed by a second judge in the other jurisdiction.

Essentially, it’s a two-step, separate judge/separate hearing system.

In a ruling which sharply critiqued that system for being procedurally inelegant, duplicative, and challenging for judges to work within, Justice Pazaratz began this way:

There’s an old saying: “Two Heads Are Better Than One”.

But not when it comes to trial judges.

The facts involved the parents of two children who had divorced. The mother was living in Ontario with the children, and the father had moved away to Nova Scotia. A court in that province had ordered him to pay child support, which he completely failed to do. He eventually brought a motion to a Nova Scotia judge, asking to have his support obligations changed.

Although the mother was not required to travel from Ontario to appear on that motion (nor did she do so), under the bifurcated system the Nova Scotia order was rendered merely provisional in nature, and still had to be brought before an Ontario judge for confirmation, variation, or rejection.

Enter Ontario Superior Court Justice Pazaratz. Commenting on the two-step system, he wrote:

Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case.

It may sound good on paper.

It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel.

But except in the simplest of cases, it creates an almost impossible task for judges …

For one thing, there were significant evidentiary hurdles to be faced by each of the judges who were involved:

But the problem with this procedure is that neither court hears from both parties at the same time. The court hearing from one party may not know whether there might be evidence contradicting that party’s position.

But what if the first judge fully believes the Applicant, and the second judge fully accepts the contradictory evidence of the Respondent?

In Justice Pazaratz’s view, efforts to bridge the evidence gap, for example by using teleconferencing or other measures, did not always solve the problem.

While conceding that the two-step system aimed to relieve unfairness for parents living in different provinces, Justice Pazaratz felt that it gives rise to an extensive list of procedural challenges and shortcomings. And while Canadian legislation does provide for reciprocal enforcement of certain support orders (for which the father’s particular order was ineligible), similar concerns still arise in those kinds of proceedings as well. The Justice capped off his exhaustive list of detailed concerns by asking simply, “When will it end?”

Justice Pazaratz has certainly used his family cases as a soapbox for venting his broader concerns over how the Canadian justice system works – or doesn’t work. But perhaps it begs the question: Is this an appropriate role for a judge to take? And if so, is a family law proceeding the right place for a judge to air his concerns and criticisms?

For the full text of the decision, see:

Chree v. Chree, 2015 ONSC 6480

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Pass the Buck – or Pass the ‘67 Buick?

67 buick

Pass the Buck – or Pass the ‘67 Buick?

In a case called Townshend v. Townshend, the court was asked to consider whether a ’67 Buick – that had been passed from father, to mother, to son, to brother, and then to the grandson – was part of the Net Family Property of a husband in his divorce.

Originally, the car was owned by the husband’s father. After he died, the husband’s mother drove it for a few years but then gave it to one of her sons, Paul, to encourage him to go back to school.

The husband claimed that during the marriage, his brother Paul “gave” him the car for $400, which was the equivalent to what Paul had recently paid for new tires on the vehicle. The husband then claimed that he gave the car to his own son just prior to separating from the wife, i.e. putting it back outside the umbrella of the husband’s Net Family Property (NFP) in the upcoming divorce. At the date of separation, the car was registered in the husband’s name; by the trial date it was registered to the son.

In the subsequent divorce proceedings, the court was asked to consider whether the car should be considered a gift from the brother – and thus its value would be exempt from the husband’s Net Family Property – or whether its value should be added to husband’s tally of assets for equalization purposes.

At trial, the judge had said that “technically” the car was not a gift; rather the husband had purchased it from the brother for $400. The trial judge was also skeptical that the husband had gifted it to his own son prior to separation. The judge forced the husband to include the entire value of the ’67 Buick – about $5,750 – in the husband’s NFP.

The matter went to the Court of Appeal, which concluded that the trial judge had been wrong: While the judge was entitled to reject the husband’s claim to have given his own son the car prior to separation, he had clearly accepted that part of the husband’s story that had him buying the car from his brother Paul. As the Appeal Court explained:

It is implicit in the trial judge’s reasons that he accepted the husband’s evidence that he acquired the car from his brother by effectively reimbursing his brother for the cost of new tires the brother put on the car.

In these circumstances, in my view, it was unreasonable to conclude that the husband had not acquired the car by way of gift.

In other words, this arrangement fell short of a true purchase/sale: rather, the husband had been given the car by his brother except for having to reimburse the cost of the new tires.

As such, the proper approach was to consider the $5,750 value of the car – minus the $400 for new tires – to be a gift that was excluded from the husband’s NFP; only the $400 should have been added into the NFP calculation.

This case shows that especially in family situations, it can be difficult to identify the distinction between a gift between family members, as opposed to a sale or some other transaction (particularly if involves a price below market value). It’s always a good idea to get legal advice in these situations.

For the full text of the decision, see:

Townshend v. Townshend, 2012 ONCA 868 (CanLII),

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

care

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

Consider this scenario: Two spouses divorce after 20 years of marriage and three children. They enter into a separation agreement to establish the combined child and spousal support the husband should pay, and agree that a home they purchase after separation would be taken in the wife’s name alone.

However, in 2005 they decide to enter into an Amending Agreement: Among other things, it adjusts the support amount to reflect the husband’s declared income of $80,000 per year, and changes the split on the home’s ownership to 50-50 for each of them (with the title documents amended accordingly).

Years later, the wife later finds out that the husband’s income was not $80.000 as he claimed, but rather closer to $345,000. The vast majority of that income came from various contracting / home building businesses that the husband owned, which generated significant unreported income about which the Canada Revenue Agency was unaware.

The wife then asks the court to set aside the Amending Agreement as unconscionable, and to declare her the sole owner of the property. This is based mainly on the husband’s untruthfulness about his true income. In response, the husband complains that the wife should have raised her objections sooner in their proceedings, and that she should be barred from raising them now.

The questions for the court was this: Should the Amending Agreement be aside in these circumstances?
Not surprisingly, two different courts’ answer was a resounding “yes”. But what was interesting is that both courts concluded that the husband had a duty to act with “scrupulous care for [the wife’s] welfare and interests” in the circumstances.

The matter first came before an applications judge who found that the wife would not have signed the second agreement had she known of the husband’s true income. That judge set aside the agreement and declared her to be the sole owner of the home.

In doing so, the judge found there had been inequality between the parties and that the husband was preying on the wife, especially in light of her economic vulnerability. As such, he had a duty to act with her best interests in mind, and – as the later Appeal Court confirmed – his “failure to disclose that his income was roughly four times that which he represented it to be was a serious breach of that duty.”

There was no doubt on the evidence that the husband misrepresented his income as being $80,000, when in fact he had significant additional undeclared income. The wife did not find out about it until long after she began the court proceedings, so it did not lie in the father’s mouth to she should have raised it earlier in the proceedings.

Also, the Court of Appeal found no fault in the prior judge’s assessment that the Amending Agreement was unconscionable in law, based on both the husband’s non-disclosure of significant income, as well as the manner in which the parties purported to deal with their real estate. Although the concept of “unconscionability” in the context of domestic contracts is not the same as for regular contracts, one principle remains the same: where there are circumstances of oppression, pressure, or other vulnerabilities, and where there is evidence that one party exploits those vulnerabilities during the negotiation process to the point that the domestic contract deviates substantially from what the relevant family legislation would otherwise dictate, the contract need not be enforced.
The Amending Agreement was therefore set aside and the wife was declared the sole owner of the property.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

submissions

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

A recent decision in Mwanri v. Mwanri raised a narrow – but important – legal point: When lawyers make submissions in family court, these are simply that: submissions, assertions, or stated positions on behalf of one of the parties. They are not tantamount to “evidence” that a court can consider in making its decision, and it is an error for a court to apprehend them that way.

In Mwanri v. Mwanri the parents were involved in a custody dispute over their two children. By way of a court order the father had been granted sole custody of an older son, while the mother had been granted sole custody of their daughter. But despite that earlier order, in 2014 the daughter decided to go live with the father. Seeking to formalize that new arrangement, the father brought a court motion to vary the original custody order as well as his related child support obligations.

At the motion hearing the evidence included the results of interviews with the daughter conducted by the Office of the Children’s Lawyer (OCL), which had become involved in order to monitor the existing parenting and access schedule. Based on those OCL interviews, together with some evidence from the mother, the motion judge rejected the father’s motion, ruling that he had actually influenced the daughter to move out of the mother’s home and to move in with him instead. That adverse finding was exacerbated by the motion judge’s conclusion, in connection with certain prior directives, that the father’s conduct “amount[ed] to a failure to comply fully with the existing court orders, if not outright contempt of them”.

By way of an appeal launched by the father, the Ontario Court of Appeal was asked to review the motion judge’s conclusions for errors.

First of all, the Appeal Court pointed out that the mother had given sworn evidence that supported the motion judge’s finding that the father had influenced the daughter’s decision to change her place of residence. So the motion judge’s reliance on that evidence was warranted.

However, the Appeal Court added, “The motions judge’s reference to the OCL’s interviews with the daughter is a different matter.”

The motion judge had never been given an actual report or other evidence from the OCL, so were no formal documents tendered. Rather, the motion judge had merely drawn conclusions based on the oral submissions by the OCL’s lawyer to the effect that the OCL interviews showed the father’s attempts to influence the daughter to move and disobey the existing orders. This, the Court of Appeal found, was a mistake on the motion judge’s part. As the Appeal Court put it:

Submissions by counsel are not evidence. They are simply submissions and nothing more.

(Still, nothing ultimately turned on that particular finding of error, since there was also credible and sufficient evidence from the mother – which the motion judge had believed – that the father had influenced the daughter).

The Appeal Court also rejected the father’s notion that he had technically been accused by the motion judge of being in contempt, even while it confirmed that he had indeed failed to comply with certain aspects of the earlier order, including the directive to pay legal costs.

Those two aspects of the father’s appeal were accordingly dismissed (although he succeeded on some of the other numerous grounds of appeal that he had raised in connection with support, custody and other related issues arising from the initial order).

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 CarswellOnt 18511, 2015 ONCA 843

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

SCC

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

A recent Ontario case highlights an interesting “timing” conundrum in Family Law: when a parent applies for retroactive child support, does it matter that the child over 18 when the application is made? Or does that make the child ineligible for support?

And what if it’s a motion to retroactively change existing support levels?

The law on this point was canvassed in the recent case of P.M.B. v. A.R.C.-A. The mother wanted support to cover a period when the child was 18 and attending school full-time. However, on the date of her application, the child was 19 and no longer attending school. She asked the court to order child support that was retroactive (i.e. effectively “back-dated”) to cover the child’s eligible period.

In considering that claim, the court resorted to the principles set out in a well-known Supreme Court of Canada decision in D.B.S. v. S.R.G., where the court set out the factors that family courts should take into account in detailing with such retroactive applications.

That higher Court had confirmed the general principle (known as the “D.B.S. rule”), that a claim for retroactive support cannot be made unless the child is eligible for support at the time the application is made. As the court in P.M.B. v. A.R.C.-A. put it: “Child support is for children of the marriage, not adults who used to have that status.”

(But this principle comes with a caveat, because the standards and thresholds for what makes a child eligible for support are slightly different under the provincial Family Law Act versus the federal Divorce Act. Also, other established factors that need to be examined, such as the reason for the parent’s delay in applying, the conduct of the paying parent, the circumstances of the child, and the hardship that such an award may entail. In short: Child support eligibility is a complicated legal issue).

However – as with all rules – there are some exceptions. The D.B.S. rule will usually be found not to apply in cases where:

• There is an existing order in place (and an established support obligation under either the Divorce Act or the Family Law Act) and a motion is being brought to change it retroactively;

• A party has engaged in blameworthy conduct (for example where the support recipients have been thwarted or blocked from pursuing a motion to vary support because of some misconduct by the paying parent); or

• The paying parent has failed to disclose income increases to the recipient parent, in a manner that the court considers blameworthy.

Ultimately, and after considering all of these principles, the court in P.M.B. v. A.R.C.-A. decided to stray from the usual D.B.S. rule, for various circumstantial reasons. These included: a) the existence of an oral agreement for child support; b) the fact that two of the three children were still under age and eligible for support when the retroactive support order was being made; and c) because the father had been fully aware of his support obligation – and the fact that he was not meeting it – all along.

For the full text of the decision, see:

P.M.B. v. A.R.C.-A., 2015 ONCJ 720 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Do Nude Pics of Your Ex Help the Judge Decide? Likely Not

picture
Do Nude Pics of Your Ex Help the Judge Decide? Likely Not

A parent who is battling for custody of a child may be tempted to resort to bad-mouthing the other parent, or painting him or her in a bad light, all as a means of swaying the judge to rule in their favour. But in a recent Ontario case the father went too far by including explicit text messages and nude photos of the mother in the evidence he filed. The opening lines of the judge’s ruling tells the story:

Do nude pictures of parents help judges decide who should get custody?

A silly question?

Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?

And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

If the objective was to humiliate the mother, undoubtedly the father succeeded.
But how does humiliation help in family court?

How does irrelevant and scandalous information help a judge determine the best interests of the child?

More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation?

Lamenting that privacy and discretion seem to be “a thing of the past” in this era of e-mail, Facebook, Twitter, texts and selfies, the judge commented that the father’s conduct actually gives rise to some evidentiary issues because of his unauthorized use of the mother’s discarded cell phone. Then the judge added:

But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.

Big deal.

The judge acknowledged that there was a back-story to the father’s ostensible justification for filing this sort of evidence: After living together for almost a decade, the mother had an affair and divulged that the youngest of their two children was likely not the father’s. Still, the court gave a clear message:

In a number of recent decisions, this court has urged parents to take a more adult and civilized and reasonable approach to resolving custody and access disputes. Simplistically, I have tried to convey the message:

Nasty doesn’t work.

The mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts in this case cries out for a stronger message:

Nasty won’t be tolerated.

The judge went on to provide a reasoned decision on the substantive issues relating to temporary custody of the children, after ordering the nude photos and salacious text excerpts to be removed from the court file. The judge also ordered the father to never show the nude photos and text to anyone else.

For the full text of the decision, see:

J.S. v M.M., 2016 ONSC 2179 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com