The Ontario Superior Court recently addressed the question, “Do nude pictures of parents help judges decide who should get custody?”. Justice Pazaratz answered in the negative and criticized a father for attaching series of nude selfies of his ex-spouse to an affidavit that he filed in support of his motion for a custody change. The Judge ultimately ordered that they be removed from the court record, stating that they were irrelevant to the custody issue.

The History of the Parties

The parties were not married, but lived together from August 2006 until October 2015. They had two children, an eight-year-old boy and a 16-month-old girl. Following the separation, the family continued living together in Hamilton in a unit owned by the father.

In December 2015, the mother moved out of the home with her children, but remained in Hamilton. In January 2016, the parties agreed to an arrangement which permitted the father to have access to his son on alternate weeks, from Thursday afternoon until Sunday afternoon, as well as overnights on alternate Thursdays (in accordance with his work schedule). The father also obtained access to the daughter for six hours each Friday.

In February 2016, the father filed a motion seeking for the son to live with him primarily, for expanded access to the daughter (including overnights) and to prevent the mother from relocating outside of Hamilton with the children.

The mother filed her own motion seeking no change to the existing access arrangements, and consenting to a temporary order not to relocate outside of Hamilton, pending trial.

The Position of the Parties

The Father

The father made a number of accusation against the mother.

Among other things, he argued that he had always been the primary breadwinner, and that the mother had “never worked very much”. He pointed to the fact that the son has special needs (he was mute and required specialized health care and education), that the father had been the one to set most of this specialized care up, and that the mother had “no comprehension” of how disruptive it would be to move the boy to a different city, with different doctors and a different school. The father also claimed that the mother had been trying to “cut him out” of the children’s lives since she left the family home, and he was concerned that she was not adequately caring for them.

He also argued that even though he had learned that the daughter was not his biological child, he wanted to pursue a long-term custody claim with respect to both children.

He noted that his sister would be willing to move into the same building that he lived in, that his parents were going to be moving to Hamilton, and that he would, therefore, have an extensive support network in place to help with the children.

The Mother

The mother acknowledged that there had been “many problems” in the relationship prior to the separation, and that she had had an affair in 2013. The man with whom she had the affair is the daughter’s biological father, and was also her new boyfriend. She wanted to move to Brantford to be with him, and take the children with her.

The mother was confident that she could arrange proper education and medical attention for the son’s special needs in Brantford, and that nothing would change if he remained in her care. She denied that the father had been as involved in the children’s lives as he claimed.

The mother also acknowledged that she had not worked outside of the home “very much”, and certainly not since the birth of the daughter, and that she was a full-time mother, available for the children 24/7.

Selfies and Sexts

In support of his motion for a change to custody, the father filed 89 full page colour enlargements of sexually explicit messages and photos that the mother had sent (presumably to the father of the daughter), which he had found on a discarded cell phone she had been using in and around 2013.

The father justified his actions by arguing that the mother must have spent so much must time “sexting” that he possibly neglected the son (this had been before the daughter was conceived). He also claimed that the son had been the one who discovered the explicit images when he had been playing with the mother’s cell phone, and that the son had been traumatized.

Justice Pazaratz did not buy the father’s explanation as to why he had included the sexts in his court materials, stating that it made no sense that the mother would have left her broken cell phone containing graphic images in the father’s home, where the children could have come across something they should not have seen. In any event, he noted that the mother had never authorized the father to retain her phone, or to look at its contents. Further, while the father blamed the mother for upsetting the son with graphic sexual material, the father was the one in control of the phone, and “he alone should assume responsibility for leaving sensitive materials where a young child could quite predictably find them.” Lastly, there was no need to actually attach colour enlargements of any sexts to the court documents. He could have simply have told the court that the mother had sent “nude selfies” during the period in question without having to show copies.

Social Media and Family Law

Justice Pazaratz duly noted that “sometimes, an embarrassing post from the past can assist the court in determining a contentious issue”, such as confirming drug or alcohol use, or intimidating or threatening behavior. He further noted that “[i]t’s quite amazing the incriminating things people will type and photograph.”

However, he also stated, “…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:

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.

Justice Pazaratz further noted that family courts have “urged parents to take a more adult and civilized and reasonable approach to resolving custody and access disputes” emphasizing that “nasty doesn’t work”. He criticized the father for the “mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts” and concluded that in this case, “nasty won’t be tolerated.”

Justice Pazaratz struck the photos and texts from the father’s court materials, ordering that they be removed on the basis that they were “irrelevant to the determination of any issue before the court.

He concluded by stating:

…the presentation of such offensive materials in an affidavit constitutes a transparent effort to humiliate and perhaps dissuade the [mother] from pursuing her claims. 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.

Lessons Learned

Social media is a pervasive part of modern life. As Justice Pazaratz noted:

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 [emphasis added].

Indeed, courts are unlikely to view parents who use embarrassing online evidence against one another in family law disputes. Ex-spouses going through family law proceedings should be careful about taking action against their former partner which could be viewed as being malicious or as an explicit attempt to embarrass the other party.

If you are considering separation or divorce, or if you have already begun the process, contact Gelman & Associates to obtain comprehensive, knowledgeable legal guidance. In order to be accessible to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.