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 (available at http://www.canlii.org/en/on/onsc/doc/2016/2016onsc2179/2016onsc2179.html) , 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. In 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 the father 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 the father 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, the father'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?" Virginia K. Richards