Andy Hayher
Court Says No to Nasty Behaviour | Custody BattlesWhen custody battles end up in court they can become ugly. Often, litigants are so entrenched in a position they lose sight of what is and what is appropriate and relevant for the court. Sometimes they become malicious.

In the recent decision of J.(S.) v. M.(M.) from the Ontario Superior Court of Justice, Mr. Justice Pazaratz levels harsh criticism at a father (and his lawyer) for including very inappropriate material in the court file which was designed to embarrass the mother. The material submitted by the father included sexually explicit selfies from the mother’s discarded cell phone along with screenshots of the mother “sexting” with another man. The material had no bearing on the court’s determination of custody.

In the decision, the court considers the long-term effect on this type of nasty litigation. Particularly, the court gives thought to how these parties will ever be able to co-parent and get along after the father went to such lengths to embarrass the mother. Rightfully, the court questions if these types of litigation cheap shots can ever be forgiven. In his review of this decision, Phil Epstein, QC makes remarks about the courts and technology:

“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 the technology and social media. Between emails, 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 on another…”

There are occasions where embarrassing posts from the past can assist the court. For example, (1) cases where posts on social media confirm substance abuse; or (2) intimidating behaviour via text messages or email. What this case tells us that there is some lines that do not need to be crossed and some information that is “TMI” for even the court. The pictures in this case were struck from the court record and the father was restrained from allowing anyone else to see them or post them online.

The court urged the parents to be adults and be civilized. In a previous decision Justice Pazaratz told the litigants that “nasty doesn’t work.” In the case at bar he used stronger language:

“Nasty won’t be tolerated.”