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.
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)