LEGAL Creating parenting evidence – selfie or selfish?

Judges may consider social media content to determine parenting and/or support issues but a 2016 Ontario case highlights why judges may also find it irrelevant (full decision in Whidden v. Ellwood available free online at www.canlii. org).

This case involved high conflict parents of a nineyear-old. Sometimes the dad had only supervised contact due to drinking, anger issues and past physical altercations with the mom. Often the child witnessed the problems, although she was never physically harmed. The judge said the history was troubling but his biggest issue was that during access exchanges there was “extreme and perpetual conflict and misadventure . . . all . . . directly in front of the child.”

Mom presented audio recordings of the child’s phone calls 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 said parents shouldn’t secretly record their children because it was “a breach of trust, abuse of access and a cheap manipulation of an innocent child.”

Both parents took videos of each other when exchanging their daughter. The judge said parents should stop pretending to help the Court by making videos for evidence. All his comments are worth reading, but here’s a summary of what he called the “epidemic of smartphone nonsense in Family Court, ” all direct quotes from the decision:

– Taking 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.

– Taking 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.

– 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!

– 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.

– We’ve all heard of the SELFIE: A self-portrait, usually intended to make the subject look good. 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.

The judge didn’t rely on the tapes or videos to make his decision. His final order gave dad unsupervised parenting and imposed many conditions on both parents to try to moderate their future parenting behaviour. Both were prohibited from taking any more videos of each other.

Sometimes it may be appropriate/necessary to tape calls or make videos but this case illustrates the importance of discussing this with your lawyer.

A Nova Scotia lawyer since 1986, Kay Rhodenizer grew up in Lunenburg County and recently moved to New Minas. As counsel at MDW Law, Halifax (www.mdwlaw. ca) she represents clients across Nova Scotia focusing on family law and estate dispute resolution. She can be reached at Kay@mdwlaw.ca