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.

Fertility Law BC

Congratulations to barbara findlay, Q.C., Monique Shebbeare, Lynda Cassels, Michelle Kinney and Zara Suleman on launching the Fertility Law BC website.

If everything you know about surrogacy is limited to Baby Mama the movie, and you are interested in learning more, you MUST check out this website – it is a wealth of information.

The site is an easy to use resource for fertility law in British Columbia and Canada including sperm donation, egg and embryo donation and surrogacy.

The text is straightforward and provides practical and accurate information: it breaks things down to the basis:

Let’s start with the lay of the land. From the point of view of BC law, assisted reproduction is such things as:

Getting pregnant using home insemination with a friend as the sperm donor
In vitro fertilization (IVF), where conception of the embryo takes place in a lab and the embryo is then transferred to a woman’s uterus
Artificial insemination (intrauterine insemination/IUI) with a spouse’s sperm to increase the change of pregnancy
Having a child with the help of a surrogate who will carry the fetus until birth
Conceiving a child with the help of donated sperm, eggs or embryos
Assisted reproduction is not sexual intercourse. In fact, BC’s Family Law Act specifically defines assisted reproduction as “a method of conceiving a child other than by sexual intercourse”.

Many different people use assisted reproduction: same-sex couples, heterosexual couples, single people wanting to parent, and couples where a partner is transgender.

There are both federal and provincial laws about assisted reproduction. The federal laws essentially focus on the ethics and safety of assisted reproduction: what we are and are not allowed to do in Canada. Provincial law focuses more on parentage: who the legal parents are of the children born using assisted reproduction. And of course there are other laws and regulations governing the professionals and clinics who provide assisted reproduction services.

Additionally, the Fertility Law BC lawyers will be presenting at Continuing Legal Education Course “Baby Making: Fertility Law and Assisted Reproductive Technologies” on April 8, 2016 at the Pan Pacific Hotel in Vancouver, British Columbia.

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.

Live on CFAX…Real Parenting Interview

This Saturday (March 30, 2013) I will be interviewed on Real Parenting by Shirley Broback.

The interview will be focused on the Family Law Act provisions regarding parenting and the inclusion of children’s input into parenting arrangements.

Host of Real Parenting, Shirley Broback and proud mom of two little ones!

Shirley Broback is the host of Real Parenting and the proud mom of two little ones!

Check out the interview by tuning in: C-FAX 1070 Saturday at 12-1pm PT!

Divorce: in the news and just for fun!

Here are my picks for top five family law stories of the past week:

  1. The Supreme Court of Canada made a decision in the “Eric and Lola” case – ruling by a slim majority that specific provisions of the Civil Code of Quebec do not infringe the equality provisions set out in Section 15(1) of the Canadian Charter of Rights and Freedoms.  See Georgialee Lang‘s blog “Supreme Court Says “No” to Common Law Spouses in Quebec” for a summary;
  2. As reported in the Vancouver Sun, a prominent Vancouver couple are going to court over what to do with a $615,000.00 wine collection;
  3. John Cleese is getting a divorce and funding the settlement by selling of moving props from Monty Python according to the Daily Mail.  (NOTE – if you have debts arising from your divorce and have extra stuff (like a car you never use or expensive furniture that does not fit in your new house) why not sell it to improve the financial situation?  Makes sense to me…);
  4. Liberty Ross is divorcing Rupert Sanders (it is reported that he cheated on her in the summer of 2012 with Kristin Stewart).  According to Perez Hilton, Ross is being represented by Laura Wasser (divorce lawyer to the stars); and
  5. In China a dialogue is opening about the lack of a law to provide for women to divorce homosexual spouses.  “In a report released last week, the First Intermediate People’s Court of Beijing called for a legislation to allow those who discover their spouses are homosexual to file for an annulment as an alternative to divorce.” (quote from Zeenews.com). This reminds me of the recent internet video sensation: Gay Men Will Marry Your Girlfriends.

Family Law: in the news

Two news stories caught my attention this morning:

 Thomas Beatie (the man who gave birth to three children) is having difficulty getting a divorce in Arizona.  As reported by CBS:

An Arizona man who garnered national media attention for giving birth to three children after having a sex-change operation has hit a snag in his divorce proceedings that could prevent him from having his marriage legally dissolved.

A judge is questioning whether the state’s same-sex marriage ban bars him from ending Thomas and Nancy Beatie’s union — or even recognizing its validity. Thomas Beatie was born a woman and underwent a sex change but retained female reproductive organs and gave birth to three children.

Thomas and Nancy Beatie are eager to end their nine-year marriage, but their divorce plans stalled when Maricopa County Family Court Judge Douglas Gerlach said in late June that he was unable to find any legal authority defining a man as someone who can give birth.

Former Italian Prime Minister Silvio Berlusconi has come to a divorce agreement.  As reported by the BBC:

Italy’s former Prime Minister Silvio Berlusconi has agreed to pay 36m euros (£30m) a year to his ex-wife Veronica Lario, reports say.

Berlusconi will keep the £60m villa where the couple lived with their three children, as part of a divorce deal reportedly filed on Christmas Day.

Question: How do you file divorce papers no Christmas Day?  Court registrys in British Columbia are closed for the holiday…