Skip to content

Posts from the ‘evidence’ Category

Thinking of Doing Some Cyber-Sleuthing? Think Again

Image result for sleuth

Thinking of Doing Some Cyber-Sleuthing? Think Again

I wrote a recent Blog about the admissibility of surreptitiously-recorded telephone conversations in Family law proceedings.  I have also written several times on how courts approach the admission of Facebook evidence.

Particularly in nasty divorce and custody disputes, it is likely that courts will have to grapple with these kinds of issues regularly, given how easy its become for spouses to try to secretly gather evidence against each other, using a Smartphone, keystroke logger, spyware, etc.

But for the average embattled spouse locked in bitter litigation, how effective is this as an evidence-gathering mechanism for use in Family court?

The answer:  Not very.

Under Canadian law, secretly-gathered computer data, emails, internet history, video, audio and similar evidence is generally not admissible in routine Family law hearings, except in unusual circumstances and only after a court has held a separate mini-hearing, called a voir dire, on the specific issue.  Overall, the odds are not very good that such evidence will be admitted.

Case in point:  In a called T. (T.) v. J.(T.) the court considered a situation where the husband had hacked into his wife’s private email, using the password she had allowed him to have when the marriage was in happier times.   The emails disclosed what was, in the court’s words, “an arguably disturbing exchange between [the wife] and her lawyer, which could be interpreted as evidencing some potential risk or threat to his safety.”  Still, the court found the husband’s email hacking was not only unjustified, it was a clear violation of the wife’s privacy rights.  The court also concluded that the email evidence irrelevant and inadmissible.

Similarly, in a decision in U. (A.J.) v. U. (G.S.) the court considered whether to admit evidence that the husband had collected through the use of spyware he had illegally installed on his former wife’s laptop.  The evidence showed the wife’s activities on internet chat rooms, and established that she had engaged in extra-marital sex.  The court examined the issue in the context of the couple’s dispute over custody and access issues, ultimately concluding that the affair and the online activity was out-of-character for the wife, and was not reflective of her ability to parent the children of the marriage.  The court added that it would be “a rare case” that illegally-obtained evidence should be admitted, and only after the trial judge holds a hearing to determine its admissibility.  The burden was always on the party seeking to enter such evidence to establish “a compelling reason to do so.”

For the full text of the decisions, see:

(A.J.) v. U. (G.S.)

(T.) v. J. (T.)

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

 

Can the Court Decide to Hear New Evidence After-the-Fact?

Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

For the full text of the decision, see:

Glegg v. Glegg, 2017 ONCJ 102 (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

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