The recent decision of Pazaratz J. in J.S. v. M.M., 2016 ONSC 2179 highlights how lewd texts and images used by a party to humiliate their former spouse have no place in family law litigation.

In J.S., Pazaratz J. opens the decision stating at paragraphs 1 and 2: “Do nude pictures of parents help judges decide who should get custody? A silly question?”

Pazaratz J. then proceeds to chastise the Applicant Father for enclosing numerous images and text messages of the Respondent Mother “sexting” with another man and sending nude selfies in his Affidavit in support for a motion for temporary custody. In the Reasons for Decision, Pazaratz J. questioned how the Applicant Father’s attempt at humiliating the Respondent Mother in family helps the Court determine the children’s best interests and negatively impacts the long-term ability of the parents to work together.

While His Honour acknowledged at paragraph 12 that sometimes an embarrassing post from the past can assist the court in determining a contentious issue, the Court found at paragraphs 13 that “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 evaluating the evidence, the Court was not convinced based on the Applicant Father’s rationale for filing full-page color photographs of the nude mother in sexually provocative positions in support of his motion for temporary custody. For instance, at paragraph 27(g) Pazaratz J. held that, based on the Applicant Father’s position “…there was no need to actually attach color enlargements to his affidavit. He could have summarized his version of events in a single paragraph. All he had to do was refer to them as ‘nude selfies.’ I think most judges would have understood.”

Further, the Court was unconvinced as to the Applicant Father’s rationale for attaching numerous graphic sexual texts between the Respondent and the man she was having an affair with, finding the following as to the text’s merit at paragraph 28:

“The narrative of these texts was not terribly complex or enlightening. Brief exchanges back and forth. Light on grammar. Heavy on anatomy. The Applicant could have collectively referred to them as ‘a lengthy exchange of sexually explicit messages.’ Instead, the Applicant felt it was necessary to file about 89 full-page color enlargements of the texts. The litigation version of 50 Shades of Grey. c. What did any of this have to do with custody or access? The Applicant’s counsel speculated that the Respondent must have spent so much time ‘sexting’ in 2013, that possibly she neglected their son (the daughter was soon to be conceived).”

Despite the Applicant’s voluminous evidence regarding the Respondent Mother’s affair, Pazaratz J. held that the texts, nude photographs, and the affair had no connection to the issue with parenting. Moreover, the Applicant Father presented no evidence as to any parenting deficiency by the Respondent Mother. Perhaps most importantly, Pazaratz J. held at paragraph 29(g) that “[t]he Applicant has tried to turn this custody motion into a bit of a witch hunt: She’s done bad things. Maybe she’s a bad mother”.

Pazaratz J. conveyed two strong messages at paragraph 30 and 31 of his reasons for the decision with respect to this issue:

“In a number of recent decisions, this court has urged parents to take a more adult and civilized and reasonable approach to resolving custody and access disputes. Simplistically, I have tried to convey the message: Nasty doesn’t work. The mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts in this case cries out for a stronger message: Nasty won’t be tolerated.”

At paragraph 35, Pazaratz J. also made several orders to restrict the Applicant Father’s use of the photographs and texts in the future.

Pazaratz J.’s decision highlights that counsel must advise clients what can be used as evidence in Court and explain how that evidence would or would not advance the client’s matter. Moreover, the decision stresses to counsel that clients must be dissuaded from wanting to introduce evidence that may draw adverse inferences against their client and their client’s judgment. Further, the Court’s decision underscores that the submission of humiliating, scandalous and, most importantly, irrelevant information makes matters worse in the context of Family Law litigation. So if a client wishes to introduce scandalous, humiliating, and irrelevant evidence in family law litigation, you may want to review J.S. v. M.M., 2016 ONSC 2179 with them as a cautionary tale.

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Andrew Sudano

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Andrew Sudano