CITATION: J.S. v. M.M., 2016 ONSC 2179
COURT FILE NO.: 5448/15
DATE: 2016-03-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.S.
Applicant
– and –
M.M.
Respondent
Paul Amey, Counsel for the Applicant
Nicole Matthews, Counsel for the Respondent
HEARD: March 29, 2016
the honourable mr. justice pazaratz
Do nude pictures of parents help judges decide who should get custody?
A silly question?
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?
And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?
If the objective was to humiliate the mother, undoubtedly the father succeeded.
But how does humiliation help in family court?
How does irrelevant and scandalous information help a judge determine the best interests of the child?
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?
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.
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.
But what about relevance (never mind dignity)?
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.
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.
In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.
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.
Big deal.
The actual parenting dispute between the parties is fairly straightforward.
a. There are two children: an eight year old boy and a 16 month old girl.
b. The parties lived together on an unmarried basis from August 2006 to October 22, 2015.
c. Upon separation they all remained under the same roof in a Hamilton triplex owned by the Applicant father.
d. On November 15, 2015 the Applicant called the police to successfully prevent the Respondent mother from moving out with the children. She wanted to relocate to Brantford, presumably to live with her boyfriend.
e. On December 22, 2015 the Respondent moved out with the children to an undisclosed location in Hamilton.
f. The Applicant obtained a temporary emergency order on December 24, 2015 for Christmas access.
g. On January 5, 2016 the parties consented to the existing temporary without prejudice order of Justice McLaren. It provides that the Applicant has the boy on alternate weeks, Thursday afternoon until Sunday afternoon, and alternate Thursdays overnight. This accords with his Monday to Thursday work schedule. The Applicant has access to the girl for six hours each Friday.
h. Also on January 5, 2016 the Office of the Children’s Lawyer (OCL) was asked to investigate. The OCL is now conducting a clinical investigation pursuant to section 112 of the Courts of Justice Act.
- On February 9, 2016 the Applicant father brought the motion currently before the court. He seeks:
a. Primary residence of the eight year old boy.
b. Expanded access to the 16 month old girl, to include overnights.
c. An order restraining the Respondent from relocating the ordinary residence of the children outside of Hamilton.
- The Respondent mother brought a cross-motion:
a. She consents to a temporary order that she not relocate the children out of Hamilton pending trial.
b. She proposes that there be no change to the January 5, 2016 timesharing arrangements until the OCL investigation is completed and recommendations have been received by the Court.
The Applicant says the Respondent is stalling, and trying to prolong the favourable status quo she created when she unilaterally moved out with the children just before Christmas. He wants to “restore” the real status quo: shared parenting.
The Applicant’s basic position:
a. He was always the primary breadwinner, and the Respondent never worked very much.
b. Despite his employment commitments, he was always actively involved caring for both children.
c. Their eight year old son has special needs. He is mute and is being seen by a number of health care professionals in Hamilton. He is also in a specialized educational program in Hamilton. The Applicant says he assumed responsibility for setting up many of these specialized services, and the boy’s Hamilton-based support network should not be jeopardized. He feels the Respondent has no comprehension of how disruptive it would be for the boy to change his school and doctors by moving to another city.
d. The Applicant says he was primarily responsible for the boy’s needs. They are closely bonded, and he is better able to control the boy’s behaviour. He says one of the Respondent’s few responsibilities for the boy was to take him to school on the four out of five weekday mornings the Applicant has to work. He says he doesn’t understand why the Respondent has allowed his son to have so many lates and absences from school.
e. He says the Respondent has been trying to cut him out of the children’s lives since she moved out, and denying or resisting access. He says she has rescheduled some of their son’s medical appointments, to prevent him from attending.
f. The Applicant denies the Respondent’s allegations that he and his parents were emotionally abusive.
g. He wants primary residence of the boy immediately because he is concerned the mother is not adequately caring for him. He suspects she is preoccupied with her boyfriend, although he admits he has no proof in this respect. He also says the Respondent has neglected the boy’s oral hygiene and feeds the boy unhealthy lunches.
h. The Applicant says the 16 month old is not meeting her milestones, and he blames the Respondent. But notably, the Applicant still proposes that the younger child should continue to live primarily with the mother. He simply wants more access, including overnights.
i. The Applicant admits the Respondent has told him he is not the younger child’s biological father. He says he discovered in October 2015 that the Respondent had an affair in 2013, around the time the younger child was conceived. At the hearing his lawyer advised that the Applicant has already arranged paternity tests in relation to the girl. He is awaiting results. But no matter whether he is the biological father or not, he says he loves the girl. He will be pursuing a long-term custody claim in relation to both children.
j. The Applicant still resides in his triplex, in a different unit than he and the Respondent shared. His sister is willing to move into the building, and his parents will be moving here from Sudbury. So he says he has an extensive support network to help with the children.
k. He also says he can rearrange his work schedule, to be available for his son both before and after school hours.
- The Respondent’s basic position:
a. There were many problems in the relationship leading up to separation.
b. She acknowledges that in 2013 she had an affair. She says this was at a time when her relationship with the Applicant was in trouble. She says the other man is actually the younger child’s biological father. He is also now her boyfriend, and she wants to move with the children to Brantford to be with him. She also has other relatives in Brantford.
c. She is confident she can arrange proper schooling and medical attention for their special needs son in Brantford. But on a temporary basis she’ll agree not to move out of Hamilton. So nothing will change in either child’s life if they remain primarily in her care.
d. She says she has been completely open with the Applicant that he is not her daughter’s father. She doesn’t understand why he’s asking for more access to this child when he hasn’t taken full advantage of previous opportunities for access.
e. She denies he has been as involved in the girl’s life as he claims. She says the 16 month old is too young to go for overnight visits. And she emphasizes that siblings should not be separated.
f. The Respondent says she never worked outside of the home very much, and not at all since her daughter was born a year and a half ago. She was and continues to be a full-time mother and homemaker, available for the children 24 hours a day.
g. The Respondent says she always assumed primary responsibility for both children, and the Applicant never complained about her parenting prior to separation. She questions the things he now complains about.
h. For example, the Applicant claims she provides inadequate lunches, but these are the same meals she prepared when they were together.
i. The Applicant now questions why their son had so many lates and absences from school. The Respondent counters that the Applicant either didn’t know or didn’t care that their special needs child has had long-standing problems with school absences or lates. She says the Applicant was always content to leave day-to-day parenting challenges to her, but now that they are in court, the Applicant is blaming her for everything he can think of. She notes that despite his complaints, their son is actually doing reasonably well in school and achieving expectations.
j. The Respondent denies that the Applicant has superior knowledge of their son’s needs. She says she continues to provide excellent care for both children. They are closely bonded to her and to one another, and they have adjusted well living primarily with her during the three months since physical separation.
k. She denies attempting to shut the Applicant out of the children’s lives, or rescheduling their son’s medical appointments to prevent the Applicant from participating.
- Both parties advanced predictable concerns about the “status quo.”
a. The Applicant says the Respondent is stalling when she asks the court not to change anything until we hear from the OCL. He says the section 112 investigation will take time, and even after recommendations are made it is unlikely they would be implemented prior to trial.
b. He says the Respondent shouldn’t be allowed to perpetuate a status quo which she unfairly created when she unilaterally moved out with the children on December 22, 2015.
c. He urges the court to reinstate the “former status quo”, whereby in his view he assumed primary responsibility for their son during all hours when he wasn’t at work.
d. In contrast, the Respondent submits the old status quo and the current status quo are pretty much the same: Even when they were under the same roof, the Respondent cared for the children, while the Applicant worked full-time.
e. She disputes the Applicant’s suggestion that there are urgent timesharing problems which need to be corrected. She says if the OCL identifies any major problems, the issues can be returned to court quickly.
f. The Applicant seeks primary residence of the boy but asks that at the very least the parties should share equal time, to “level the playing field” in relation to the custody dispute. The Respondent asks the court to focus on the children’s need for stability, rather than the Applicant’s strategic considerations.
- There are lots of legitimate issues to be addressed in determining custody and access.
a. It is impossible to make credibility determinations based on conflicting and untested affidavit materials.
b. I make no prediction as to which parenting proposal is more likely to prevail.
c. Hopefully, the pending s.112 report will promote resolution.
d. But I agree with Applicant’s counsel that there should be no presumption that any OCL recommendations would necessarily be implemented immediately.
e. As a result, I must determine temporary parenting arrangements based upon the appropriate and relevant evidence before me.
Which gets us back to the nude pictures and voluminous “sexting” submitted by the Applicant.
The Applicant father’s justification for filing full page colour photographs of the nude mother in sexually provocative positions:
a. In mid-November 2015 – after separation – the parties were living under the same roof but in different units in the Applicant’s triplex.
b. Their eight year old son was visiting the Applicant.
c. During the visit, the Applicant suddenly heard the boy screaming in the bedroom.
d. The boy was very upset because he had come across sexually explicit pictures of his mother while playing with her cell phone.
e. The Applicant filed the pictures with his affidavit, so the court would understand how badly the child had been traumatized by the images.
f. He blamed the Respondent.
- All of this might make sense, except for the following:
a. According to the Applicant’s affidavit, in mid-October 2015 – about a month before the boy saw the nude pictures – the Applicant viewed the “lewd” contents of the Respondent’s cell phone. The Respondent had discarded the phone because it was damaged.
b. In his affidavit the Applicant stated that in October 2015, after viewing her cell phone, he confronted the Respondent about her infidelity. She apparently admitted everything. That’s when she told him he wasn’t the father of the little girl.
c. The Respondent’s broken cell phone remained in the Applicant’s possession thereafter.
d. It is incomprehensible why the Applicant would have left that cell phone unattended in his residence, knowing his son might come across it – and knowing the phone contained sensitive material a child should never see.
e. The Respondent never authorized the Applicant to retain the cell phone; look at its contents; or use her private information in any way.
f. While the Applicant blames the Respondent for upsetting the child with graphic sexual materials, based on the Applicant’s own materials it appears that he alone was in control of the cell phone – and he alone must assume responsibility for leaving sensitive materials out where a young child could quite predictably find them.
g. Besides – even if the Applicant blamed the Respondent for the child seeing nude images of his mother, there was no need to actually attach colour enlargements to his affidavit. He could have summarized his version of events in a single paragraph. All he had to do was refer to them as “nude selfies.” I think most judges would have understood.
- I was similarly unconvinced by the Applicant’s rationale for attaching numerous graphic sexual texts between the Respondent and the man she was having an affair with, exchanged in 2013:
a. The narrative of these texts was not terribly complex or enlightening. Brief exchanges back and forth. Light on grammar. Heavy on anatomy.
b. The Applicant could have collectively referred to them as “a lengthy exchange of sexually explicit messages.” Instead, the Applicant felt it was necessary to file about 89 full page colour enlargements of the texts. The litigation version of 50 Shades of Grey.
c. What did any of this have to do with custody or access? The Applicant’s counsel speculated that the Respondent must have spent so much time “sexting” in 2013, that possibly she neglected their son (the daughter was soon to be conceived).
- For clarity:
a. The Respondent had an affair as the relationship disintegrated. That’s between her and the Applicant.
b. The Applicant presented no evidence whatsoever connecting the texts, the nude photographs, or the affair with the issue of parenting.
c. There is no suggestion the mother has was ever indiscreet. To the contrary, she appears to have been so discreet that even the Applicant didn’t sense anything was going on.
d. The Applicant presented no evidence of any parenting deficiency by the Respondent in 2013, when she was exchanging nude pictures and sexting with her boyfriend.
e. There is no evidence the Respondent has ever allowed either of her children to witness or be exposed to any sexual activity.
f. There is no specific allegation that that the mother neglected either child by engaging in adult sexual intimacy at a time when she should have been caring for them.
g. The Applicant has tried to turn this custody motion into a bit of a witch hunt: She’s done bad things. Maybe she’s a bad mother.
- In a number of recent decisions, this court has urged parents to take a more adult and civilized and reasonable approach to resolving custody and access disputes. Simplistically, I have tried to convey the message:
Nasty doesn’t work.
- The mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts in this case cries out for a stronger message:
Nasty won’t be tolerated.
- I must decide this motion without reference to the offensive materials. The pictures and texts are struck from the Applicant’s affidavit. They are to be removed from the court file.
a. They are irrelevant to the determination of any issue before the court.
b. Any potential probative value is by far overshadowed by the prejudice to the Respondent caused by this unfair violation of her privacy and dignity.
c. In my view, the presentation of such offensive materials in an affidavit constitutes a transparent effort to humiliate and perhaps dissuade the Respondent from pursuing her claims.
d. All of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past.
- Getting back to the more important custody/access issues, I am not prepared to make any major change to the timesharing arrangement at this time.
a. The materials filed by the parties are lengthy and in conflict.
b. While I am unable to make credibility determinations, I note that the Applicant has historically acquiesced to the Respondent assuming major responsibility for both children. And he’s still content that the youngest (and presumably more vulnerable) child remains primarily in her care.
c. Both parents have strengths and weaknesses.
d. The Applicant’s proposal would entail significant involvement by his extended family -- an untested arrangement generally less desirable than children remaining with a biological parent.
e. Courts should be cautious about disrupting existing arrangements on a temporary basis. While I acknowledge the Applicant’s concern about the Respondent’s unilateral creation of the most recent status quo, the evidence suggests that the status quo even as of the date of separation favoured continued primary placement of the children with the mother.
f. I agree with the Applicant that his work schedule allows opportunities for significant time sharing, and that six hours per week with the 16 month old daughter is insufficient.
g. But the Applicant’s request for primary residence of the boy would be highly disruptive, and involve significant separation of siblings – which is discouraged. Even his “week about” alternate proposal entails significant and unnecessary disruption of arrangements which have been working out fairly well.
The temporary order:
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 terms of the order of January 5, 2016 shall continue on a temporary basis except as specifically modified herein.
The Applicant shall have access to the male child on the following terms:
a. Week one: Thursday afternoon (after school or 4:00 p.m.) until Sunday at 6:30 p.m.
b. Week two: Thursday afternoon (after school or 4:00 p.m.) until Saturday at 6:30 p.m.
c. The Applicant shall also be entitled to 10 additional overnight visits during the summer school break 2016, to be selected by the Applicant at least 30 days in advance, but on the basis that the boy shall not be with the Applicant more than seven nights in a row.
- The Applicant shall have access to the female child on the following terms:
a. Effective immediately, for six hours each Friday and for six hours on the Saturday of his shorter weekends with his son, or Sunday of his longer weekends with his son.
b. Commencing June 3, 2016 each week from Friday morning until Saturday at 6:30 p.m.
c. After July 1, 2016 the Applicant shall be entitled to four additional overnights, to be selected at least 30 days in advance, but on the basis that he shall not have more than two overnights in a row with this child.
I make no determination as to the potential impact of a future OCL report on any of these parenting arrangements.
Access in relation to the female child may be subject to redetermination if another father advances any claims in relation to time with this child.
The ordinary residence of the children shall not be relocated from the City of Hamilton, nor shall their existing involvement with schools, doctors, or other third party professionals and agencies be changed in any way. No arrangements or commitments with respect to a future change in third party service providers shall be made by either party, without the consent of the other.
The parties shall keep one another fully informed with respect to any major issues or professional interactions involving either child. Both parties shall be entitled to communicate directly with all third parties involved with the children including schools, doctors, recreational agencies, or other professionals.
If any issues other than costs remain to be addressed, the parties should arrange a time through the trial co-ordinator to appear before me.
If only costs need to be addressed, counsel are to file written submissions.
a. If the Applicant is seeking costs, his submissions shall be served and filed within 21 days.
b. If only the Respondent is seeking costs, her submissions shall be served and filed within 21 days.
c. Responding submissions shall be served and filed within 15 days of receipt.
d. Any reply submissions shall be served and filed within 7 days.
e. Counsel do not have the option of extending those deadlines.
Pazaratz, J.
Released: March 31, 2016
CITATION: J.S. v. M.M., 2016 ONSC 2179
COURT FILE NO.: 5448/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
J.S.
Applicant
-and-
M.M.
Respondent
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: March 31, 2016