Kay Rhodenizer – March 2018
Anne McFarlane noted in her February 2016 Blog “What’s Your Social Media Strategy”(https://www.mdwlaw.ca/family-law-whats-your-social-media-strategy/) that judges may consider social media content to determine parenting and/or support issues. On a related topic, a decision from the Ontario Supreme Court of Justice  highlights the potential perils of actively using technology to create evidence and circumstances when a judge has decided it is not relevant.
The Ontario case involved high conflict parents of a nine-year-old girl. The dad had only supervised contact due to drinking and anger issues and past physical altercations with the mother. Often the child witnessed the problems, although was never physically harmed herself. Justice Pazaratz stated the history was troubling but the biggest issue was that during access exchanges, there was “extreme and perpetual conflict and misadventure….all…. directly in front of the child.”
Mom presented nine audio recordings of the child’s phone conversations with dad (taped by dad) to try to show he badgered the daughter and sometimes slurred his words. Dad argued the tapes showed mom was in the background interfering with the calls. The judge assumed dad was on his best behaviour while taping so didn’t find them favourable evidence for dad. He then said parents shouldn’t secretly record their children because it was “a breach of trust; an abuse of access; and a cheap manipulation of an innocent child.”
Both parents took videos of each other during access exchanges. Justice Pazaratz said parents should stop pretending to help the Court by making videos for evidence. All of his comments are worth reading, but here’s the overview of what he called the “epidemic of smartphone nonsense” in Family Court:
[a] Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.
[b] ….[T]aking videos is not likely to help you win your case. It’s more likely to backfire. To cause the judge to worry about your parental judgment.
[c] ….[T]aking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.
[d] What message is the videographer conveying to the child? ‘Look how bad your father is!’ ‘I’m going to record this so everyone will see what a horrible mother you have!’ ‘Be careful, the parent you love can’t be trusted!’
[e] Perhaps the more cynical and prophetical message: ‘Showtime!’
[f] Do children really need to receive such hurtful and destructive messages at an already tragic time in their lives?
[g] When parents routinely pull out their cameras, ready to ‘click’ at the slightest false move —like gunslingers squaring off at the O.K. Corral – are they doing it out of love for a child? or hate?
[h] No matter what image they hope to record, it can’t be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.
Perhaps we can borrow from social media to coin a term which suitably describes judicial disdain for this type of behaviour:
[a] We’ve all heard of the ‘SELFIE’: A self-portrait, usually intended to make the subject look good.
[b] How about a ‘SELFISHIE’: A parent taking a disturbing video to try [to] win in court, oblivious to the emotional trauma they are inflicting on their child.”
Justice Pazaratz decided dad was no longer limited to supervised parenting, but it should come as no surprise to learn that he didn’t rely on the videos to make his decision. His final Order imposed many conditions on both parents to try to moderate their future parenting behaviour and both were prohibited from taking any more videos of each other.
While in some instances it may be appropriate/necessary to tape calls or make videos, the foregoing illustrates the importance of discussing this with your lawyer.
 Whidden v. Ellwood 2016 ONSC 6938 (CanLII).
 Paragraphs 97 and 98. Italics and capitalized words are the judge’s emphasis.