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Affidavits – Sexting and Explicit Material: not in the best interest of children

In family law cases, most notably those dealing with parenting matters, affidavits can be long and detailed.

The majority of situations require a necessary exercise of judgment when determining what should and should not be included in affidavit materials before the court.

Recently, the Honourable Mr. Justice Pazaratz, of the Ontario Superior Court of Justice, wrote a very helpful decision opining on the Applicant father’s inclusion of a series of sexually explicit selfies of the mother in affidavit material (which he had retrieved from the mother’s discarded cell phone).

The Court wrote in J.S. v. M.M., 2016 ONSC 2179 (CanLII):

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

2. A silly question?

3. 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?

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

5. If the objective was to humiliate the mother, undoubtedly the father succeeded.

6. But how does humiliation help in family court?

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

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

a. How will this family ever heal?
b. How will the parents ever again be able to get along?
c. Can cheap shots ever be forgiven?

9. Separating parents are already in crisis. Our court process can either make things better or worse. And our success will hinge in part on our ability to address the modern realities of technology and social media.

10. Between e-mails, Facebook, Twitter, texts and selfies — privacy and discretion seem a thing of the past. These days there’s no shortage of really embarrassing stuff couples can dredge up against one another — if that’s really the path we want to encourage.

11. But what about relevance (never mind dignity)?

12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:

a. Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
b. Intimidating and threatening behaviour often becomes self-evident in texts.
c. A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
d. It’s quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them.

13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.

14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.

15. 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.

16. Big deal.

The Court went on to order:

35. The photographs and texts attached to the Applicant’s affidavit dated March 15, 2016 are struck from the record. They are to be removed from the court file immediately by court staff and returned to the Respondent’s solicitor. The Applicant shall not allow any other person (including the children) to view these materials. He shall not disseminate any graphics or images from the cell phone to any person other than legal counsel. This includes a prohibition against posting any of these materials on line. The Applicant shall deposit the cell phone with his lawyer pending further order.

The above decision highlights the discretion that is necessary and important when considering what should and should not be included in affidavit material submitted to the courts. As noted by the Honourable Mr. Justice Pazaratz, there are times when social media is helpful in assisting the court in making decisions on a contentious issue (see paragraph 12) and times when it is of no value at all. Materials only aimed at causing embarrassment or inflaming matters between the parties should not be included and may have an adverse impact on the outcome for the party putting the irrelevant information forward.

Also – it is very important to consider children (both young and grown) when submitting explicit materials to the courts. In some jurisdictions, such as Alberta, it is generally possible for any person to obtain court documents upon submitting the necessary forms. During my time practicing in Alberta, I recall a friend advising me she was going to order the documents from her parent’s divorce some 25 years earlier (I STRONGLY advised against this course of action). Make sure to turn your mind to the impact reading an affidavit might have on your adult child if they were ever to review it.