Court Cases & Orders

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

In an Ontario Court of Justice decision from just over a month ago, the court allowed the mother in a custody and access dispute to be cross-examined by way of Skype (a free software application that allows users to make voice and video calls over the Internet), because she had moved to another country and was financially unable to return to Canada to attend the trial.

The case involved a family law dispute with custody issues, in which the court had made various orders relation to the children, including one placing them in the custody of the mother. The father was not awarded custody or access but eventually – after he successfully completed treatment for substance abuse – he applied to vary the initial order to obtain access to the children and develop a relationship with them.

The father took the needed steps to try to find the mother to serve her with his application to vary. However, he was unable to find her, and she did not respond to any of the court documents that were part of his making the application. After following due procedure, the father obtained an order in the mother’s absence.

The mother eventually learned of the order, which she opposed (and in fact, she still resisted giving the father any access to the children whatsoever). It turned out that she had moved to Denmark with her new husband. Accordingly, she brought a motion for an order allowing and her new husband cross-examined by way of Skype. She claimed that she was financially unable to travel back to Toronto from Denmark for the trial (the costs of airfare was about $2,000), and that either she or her new spouse had to remain in Denmark in order to care for their children (which included his daughter from another relationship).

The father objected, claiming that the use of Skype would hamper the “ebb and flow of cross-examination”, and that it would be impossible for a judge to assess the mother’s demeanor and credibility from the answers obtained using this technology.
The court examined in detail the financial circumstances of the couple, including the new husband’s income in Denmark, his role as sole financial support for the mother and the three children of their blended union. The mother had not been able to find work in Denmark since moving there.

It also considered the operation of Skype, which the mother described as “a free computer program that allows people to make video conferencing calls over the internet in real-time for free. To make a video conferencing call, both parties only need a computer that is connected to the internet, a microphone, and a web camera (which many computers have built-in)….the connection between computers can remain open for hours without any charge. … Skype is well-known for its clear quality. … Skype video conference calling can now take place in high definition.”

From a legal standpoint, the court assessed the nature and features of Skype against the existing Rules of Civil Procedure relating to video conferencing, which it considered analogous. It also assessed the suggestion to use Skype against the requirements and objectives of the Family Law Rules, which included the desire to be fair to all parties, and to save time and expense.

In the end, the court had no concerns about the ability to assess credibility during a Skype session with the mother and her new husband, accepted their evidence relating to their constrained financial circumstances, and found that the overall balance of convenience – including the lack of prejudice to the father – favoured allowing the cross-examination via Skype to proceed.

For the full text of the decision, see:

Paiva v. Corpening, 2012 ONCJ 88

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.