Nasty Doesn’t Work in Family Court

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

Intimate partners are expert in knowing how to push each other’s pain points, and when a separation turns into a legal action, it can be difficult to resist the urge to provide evidence of every embarrassing fact or salacious detail about the other party.  The adversarial system pits the parties against each other, and when parenting is at issue, it can be difficult for litigants to discern what is relevant and what is plain-old mud-slinging.  However, a party must always consider whether the facts they try to enter into evidence are relevant and probative to the issues before the court, or they risk their mud-slinging resulting in their own character looking sullied.

Since Reasons for Judgment were published in the case of J.S. v. M.M., 2016 ONSC 2179, the link to the Reasons has been copied and emailed between family law lawyers around the country.  The facts of the case are not unusual, but it’s the pointed and exasperated writing style of Mr. Justice Pazaratz that makes the case so compelling.  Pazaratz J. held nothing back in expressing his frustration at being asked to consider (and view, in full colour) sexually explicit photographs of the mother in a custody case.

In that case, Mr. S applied for temporary custody of the two children of the marriage and primary residence of his son. He argued that the mother was not adequately caring for boy, who had special needs.  He alleged that she was too preoccupied with her new boyfriend.  man-person-smartphone-technologyIn his affidavit submitted in support of his application, Mr. S included screenshots taken from the mother’s cell phone (which she thought was discarded) of “sexts” and pictures exchanged between the mother and her boyfriend.  The judge rightly found that these bore no relevance to the matters before the court.  In the words of Mr. Justice Pazaratz, “The mother has a sex life. Big deal.”

Mr.  S’s strategy was particularly flawed given that he had tried to allege that the sexually explicit material was relevant because the parties’ son had found the cell phone and viewed the material, causing trauma to the boy. The problem with that line of reasoning was that Mr. S himself had left the phone in his residence unattended, giving his son access to it.

Pazaratz J. held no punches when he says in his Reasons, “nasty doesn’t work”, and “nasty won’t be tolerated.”

Ultimately, Mr. S’s application for primary residency of his son was dismissed, although he was able to obtain some increased access to both children.  The Court struck the sexually explicit photographs and texts from the record and prohibited Mr. S from showing the materials to any other person.   The Court invited submissions on costs, and it is very likely that once the submissions are made, there will be cost consequences for Mr. S’s litigation conduct.

More importantly than court costs, however, is possibility of co-parenting going forward.  The level of conflict between separated parents has an immense impact on the development of the children. Mr. S has likely irreparably damaged the prospects of the children being able to reap the benefits of parents who are amicable with each other.  In the words of the presiding judge: “How will the parents ever again be able to get along?”

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.

Ex Tapes: Recording Marital Discord

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*You can see this blog post, among several others by the lawyers at Henderson Heinrichs LLP, over at the Henderson Heinrichs LLP website.*

One of the most difficult challenges survivors of abuse in custody and guardianship cases face is proving to the judge that they have been abused.  Abuse survivors are often faced with the risk of being found to be exaggerating or fabricating their allegations in order to gain an upper hand in the litigation.  Sadly, survivors are put in a position of having to decide whether their evidence is “good enough” such that they will be believed.  Some survivors choose not to lead evidence regarding abuse because they are concerned that it will have a negative impact on how the court will view their credibility.

In the recent BC Supreme Court decision of N.D.T. v. T.F.T., 2016 BCSC 134, the Claimant was successful in proving her allegations of abuse.  She was able to show that the Respondent had been verbally abusive, that the abuse had taken place in the presence of the parties’ children, and that the Respondent’s conduct reflected his capacity to parent the children.  The BC Family Law Act explicitly requires BC Courts to consider the impact of family violence on children, whether or not it has been directed at the children.  The Claimant, referred to in Mr. Justice Saunders’ judgment as “Ms. T”, consequently won her claims for custody, guardianship and parenting time.  Her method of proof: video recordings.

Ms. T had video recorded the parties’ arguments for a period of approximately two years leading up to the date of separation.  Videos of 19 separate incidents were admitted into evidence.  That takes riphone_notes.jpgeal forethought!

What makes Ms. T’s success even more remarkable is that she won despite an expert report that made recommendations that Ms. T should get counselling to shift her focus away from drawing the children into the conflict and “placing blame” on her husband.

In the past, BC courts have been disapproving of surreptitious recordings in family cases.  Recording a former spouse without permission has been viewed as contributing to mistrust and conflict between parties; and yet time and time again videos and audio recordings are admitted into evidence.  In this case, one has to wonder if Ms. T would have been so resolutely successful on the parenting issues had she not been so proactive in collecting evidence during the marriage.

It feels unsettling to think that unhappy spouses will start recording each other’s worst moments for years on end with the aim to build a case for a family law trial.  However, with recording devices literally at everyone’s finger tips, we can expect more of this evidence to come.

*Nothing in this post constitutes legal advice and is for general informational purposes only. To establish a solicitor-client relationship with Virginia K. Richards please contact her at Henderson Heinrichs LLP using the information on the Contact Page.