A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

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.

Renee Cochard, Q.C. – New Judicial Appointment

We are pleased to report that Renee Cochard, Q.C., of Cassels Murray, has been appointed to the Provincial Court of Alberta.

Renee website

As set out in the Alberta Government’s Press Release:

“Ms. Cochard’s experience, expertise and notable dedication to community service and professional development make her an excellent addition to Alberta’s judiciary. I congratulate her on this appointment.”

Kathleen Ganley, Minister of Justice and Solicitor General

We will certainly miss seeing Renee at the office every day but look forward to keeping in touch and reading her decisions!

Congratulations.

Welcome Krystle Gill!

Cassels Murray is very pleased to announce that Krystle Gill joined our firm on April 1, 2015.

Krystle Gill Cassels Murray

Krystle has strong negotiation skills and experience, as well as trial experience at both the Provincial and Supreme Court levels in British Columbia.

Krystle graduated from the University of British Columbia in 2009 where she was a Director of the Law Students’ Society and President of the International Law Students’ Society. She has been a member of the Executive Committee for the Canadian Bar Association – BC Branch for 3 years, the Chair of the Women Lawyers’ Forum – Vancouver Island, and has a strong connection to the legal community through her local involvement with the Victoria Bar Association.

We are fortunate to have Krystle as part of our team. Krystle will be practicing in the areas of family and estates law.

Incomes over $350,000.00: Spousal Support Advisory Guidelines

I receive a weekly e-mail from Supreme Court Advocacy (a boutique law firm in Ottawa focusing on Supreme Court of Canada advocacy and agency).

The newsletter from Supreme Court Advocacy is a great resource and provides an up to date summary of activity at the Supreme Court of Canada.

Earlier in March, this newsletter provided a very good summary of the case of Hathaway v. Hathaway (2014 BCCA 310).

In this case, Mr. Hathaway (a high income earner) had been ordered, by the British Columbia Supreme Court, to pay child support of $12,814.00 per month and spousal support of $24,124.00 per month. At the trial level Mr. Hathaway’s income was determined to be one million dollars a year by the Honourable Mr. Justice Abrioux.

Mr. Hathaway appealed this decision and the British Columbia Court of Appeal denied his appeal.

Mr. Hathaway, at the Court of Appeal, contended that the trial judge erred in three respects (failing to consider Section 11 (which sets a ceiling for incomes over $350,000.00 per annum) and Section 12 (relating to property division) of the Spousal Support Advisory Guidelines, failing to consider the provisions of the Federal Child Support Guidelines regarding incomes over $150,000.00 (Section 4), and the principles relating to reapportioning family assets). Mr. Hathaway’s appeal was dismissed by the Court of Appeal and leave to the Supreme Court of Canada was also dismissed.

The case of Hathaway highlights the importance of considering/arguing Section 4 of the Federal Child Support Guidelines and Section 11 of the Spousal Support Advisory Guidelines at a trial level. A failure to do so will limit the ability to make such arguments or considerations at an appeal level (as per paragraph 34 of the Court of Appeal Decision).

The upshot of this case, from my perspective, is:

  • Reading the Child Support Guidelines and the Spousal Support Advisory Guidelines is a free and useful exercise if support issues are at play in your family law matter (regardless of your income);
  • If you are dealing with a case where incomes are over $150,000.00 per annum pay special attention to Section 4 of the Child Support Guidelines;
  • If you are dealing with a case where incomes are over $350,000.00 per annum pay special attention to Section 11 of the Spousal Support Advisory Guidelines;
  • It is helpful to get advice from an accountant in a case where you are working to determine an appropriate guideline income for support purposes (I encourage my clients to consult with an accountant regarding determination of income for support purposes regardless if they are paying or receiving support – it is very helpful); and
  • This is a first world problem to have…
    Guideline income

  • The Cost of Divorce in Canada 2015: five tips to reduce your costs

    My very smart friend from law school, Anna Lund (LLB, LLM, PHD Candidate) tweeted an interesting article by Penelope Graham: “The Cost of Love in Canada 2015: $50,339.21”.

    The article breaks down the cost of a romance in Canada: one year of dating, one year of engagement, a wedding and a honeymoon = $50,339.21.

    This statistic is much higher than I expected. Naturally, the first thing I thought about is: what is the cost of divorce in Canada?

    There are many expenses related to divorce and separation in Canada. Just some examples of the costs include: court fees, legal fees, fees to obtain documents, expert reports, specialists (such as a child specialist), counselling fees… and more recently the fees related to a divorce party (yes apparently there is Wikipedia page about this!).

    Given the reported cost of an average romance, I can safely say that, in my experience, the cost of an average divorce is LESS expensive than the dating/marriage phase (although generally much less enjoyable!).

    That being said, family law legal matters are still expenses (often prohibitively so).

    From my practice, these are some tips you can do on your own to help reduce your costs in a separation/divorce situation:

  • Do the heavy lifting on the front end. Consider a cohabitation agreement, document things in writing (i.e. who is contributing what funds to family assets, how are family finances going to be dealt with and who is responsible for what if the relationship breaks down – in a form that is legally binding);
  • Gather information on your own. Of course, it is important that the information you obtain is from reliable and free sources (for example: JP Boyd’s family law blog, CanLII, Supreme Court of British Columbia’s website, Provincial Court of British Columbia website, Legal Services Society website). There is lots of information on the internet about separation and divorce and certainly not all of it is good. If you can get accurate and reliable information you will be in a better position to consider your options and ask your legal counsel strategic questions. I often tell my clients that if they cannot fall asleep because they are worrying about their family law case reading the Spousal Support Advisory Guidelines or the Child Support Guidelines is a pretty sure bet for sleep within a half hour. Being prepared and informed will empower you to feel better about your decisions and also reduce the cost of legal fees;
  • Consider some alternatives to court. (mediation, arbitration, collaborative family law). If both you and your former spouse can be reasonable and have appropriate professionals to help you deal with the contentious issues you can hopefully avoid a contested litigation;
  • Pick your battles. Don’t argue about things that are not cost effective. For example, is it worth paying a lawyer their hourly ($200.00 – $500.00+) rate to argue about kitchen utensils and Ikea furniture which is worth less than the cost of the lawyer’s time?;
  • Take advantage of free resources and options. For example, the Parenting After Separation Course, family justice counsellors, and the Family Maintenance Enforcement Program; and
  • Organize your documents. There are many necessary documents that will need to be exchanged in a family law proceeding. You can obtain and organize these on your own without the cost of your lawyer – your lawyer can review them once they are organized in a more efficient and cost effective way. I recall once when I first started practicing a lovely client brought three grocery bags of crumpled and coffee stained documents into my office for organization! I suggested that it would be much more cost effective for the client to organize them at home or to have my assistant help out for a few hours at a much lower rate. You can start filling out your financial statement before you visit with your lawyer. You can also order tax documents from the Canada Revenue Agency online and your own marriage certificate.

    Of course sometimes the divorce process is so stressful it is not realistic to take on additional work beyond getting through the day to day, parenting children and a busy work schedule – if that is the case, ask your legal counsel if there is a paralegal or assistant who can help you with some of these tasks at a lower hourly rate.

    The cost effectiveness of hiring lawyers to divide stuffies is a losing proposition...

    The cost effectiveness of hiring lawyers to divide stuffies is a losing proposition…

  • High Conflict Parenting: Must Read Case

    Each weekend I like to review the recently reported decisions from British Columbia and Alberta. They are available online at the Supreme Court of British Columbia website and the Alberta Court of Queen’s Bench website (via CanLII).

    This Saturday (while I was getting my hair done) I came across a “must-read” decision of the Honourable Madam Justice D. L. Pentelechuck from the Alberta Court of Queen’s Bench: A.J.U. and G.S.U. (2015 ABQB 6) (“AJU”) (NOTE/CAUTION: People do laugh at me when I come into the salon with a stack of recent court decisions and highlighters).

    The AJU decision “offers an opportunity to consider the role that Court-appointed Parenting Experts play in the determination of the best interest of children, and the evidentiary standard to which the parties should be held in a custody dispute.” (paragraph 3).

    In the AJU case, Justice Pentelechuck considers a situation where the father sought sole custody of the parties’ two daughters and the court appointed parenting specialist supported his claim in an assessment report which recommended that the father have sole custody of the children. At first blush this might seem like a strong case for the father – his position is supported by an expert.

    From my perspective, this case is an illustration of the importance of critical and objective review of the evidence and allegations put forward in parenting disputes. In this case, while the father initially may appear to have a strong case (supported by an expert report), throughout the trial, counsel for the mother, Renee R. Cochard Q.C., illustrated – both by objective evidence and cross examination of the parenting expert and father – that the report was flawed and the criticisms of the father towards the mother’s parenting time were without merit. This written decision highlights the importance of (both counsel and the parties) carefully reviewing the evidence and allegations forwarded in parenting disputes. Ms. Cochard’s successful cross examination of the Parenting Expert diminished the persuasive value of the expert report that was before the court.

    By way of example the father “takes issue with [the mother’s] purchase of a trampoline, and also objects to the girls’ participation in horseback riding, and tubing down the Pembina River with their mother.”
    The Justice did not find validity to this concern and noted that “The Trampoline in question is an 18” high “Dora the Explorer” trampoline” (paragraph 55) and “None of these complains, individually or collectively, have merit” (paragraph 57).

    Further, in regard to the report of the Parenting Expert, the court noted: “First, the basis for her recommendations were seriously undermined during cross-examination” (Paragraph 96). For example, the Parenting Expert noted in her report that the children appeared to be getting sunburnt during the time she observed them, however, during cross examination the parenting expert “admits she did not confirm whether or not the girls actually suffered sunburn on that particular day” (Paragraph 97). Another example of the erosion of the validity of the expert report at trial was that the expert alleged that the mother did not follow-through on educational matters. However, cross examination exposed that the expert “did not see the educational centre [the mother] had in the basement.”

    This case is a good read if you are going through a high conflict parenting dispute and there are expert reports and/or evidentiary issues. The court provides a review of expert evidence (starting at paragraph 132), hearsay evidence (starting at paragraph 135), illegally obtained evidence (starting at paragraph 151), and lay opinion evidence (starting at paragraph 170). Counsel, self-represented litigants and parties to parenting disputes will benefit from reading this case.

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