Audio and video recordings can be a source of reliable and trustworthy evidence. As stated by the Supreme Court of Canada back in 1996, these recordings may be a "silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events." R. v. Nikolovksi, [1996] 3 S.C.R. 1197 at para. 28
Given the ease of recording private conversations on our smartphones, courts can expect more litigants attempting to use these recordings in court. There are no bright line rules against the use of private conversations (see Mazur v. Corr, [2004] ABQB 753). Family lawyers must familiarize themselves with the law surrounding surreptitious recordings to properly advise clients on the gathering and use of this evidence, particularly in high-conflict matters. S. 184(1) of the Criminal Code makes it an offence to knowingly intercept a private communication by electronic means, but there is an exception contained in s. 184(2)(a) if one party is consenting to the recording (known as one-party consent intercepting or participant surveillance, see R v. Schlatter, 2020 ONSC 402 at para. 47). Notwithstanding the legality of recording a conversation that a litigant is a party to, recordings of private conversations of one's family members have been ruled inadmissible in family court proceedings:
This is not an exhaustive list, and there may be other policy considerations to be weighed, including whether the courts should admit evidence of private communications between married partners (see Shaw v. Shaw, [2008] ONCJ 130 at para. 18). While public policy considerations generally favour exclusion of surreptitious recordings of family matters, there may be compelling reasons for the court to admit such evidence. For example, recordings may reveal duplicitous conduct by one party. In the case of AF v. JW, [2013] ONSC 4727 the father introduced a surreptitious recording of the mother acting in a manner that was contradictory to a court order that required her to be supportive of the children's relationship with the father. The recording demonstrated that the mother continued to disparage the father in the children's presence. The court found that she was acting in a manner that was abusive and not in the children's best interest, a central issue in the proceedings. The court admitted the statements, noting at paragraph 56 that the goal of building trust after separation should not be used to mask abusive conduct which violated a court order. Recordings have also been used in family law trials for the purpose of cross-examination of an expert witness. In D. v. D., 2020 ONSC 7449, Justice Shore permitted one party to introduce a surreptitious recording of a meeting between one of the parties (the father) and an expert witness who had been ordered to produce a s. 30 assessment for the court. This was only for the purpose of cross-examination to demonstrate that the assessor was biased against the father. It should be noted that the trial judge had no issues with the reliability or authenticity of the recording for reasons stated at paragraph 12. Conclusion: the ease of recording conversations with smartphones makes it a certainty that family law litigants will continue to record each other in hopes of gaining an advantage in court. In the absence of a compelling reasons to admit the evidence the courts have ruled that these recordings are inadmissible. The strategy of introducing recordings of private conversations into court has the potential to backfire by demonstrating the willingness of one parent to betray the other parent's trust. When offered for a compelling reason, the recordings must be clear, authentic, and complete to be considered reliable. Fairness also dictates that the opposing party receive the recordings well in advance of any hearing to independently test its reliability.
7 Comments
The naming of a child establishes biological ties between the parents and the child. A surname often holds great significance, as it is creates familial bonds across generations.
In Ontario, and elsewhere in Canada, a Mother can choose to not acknowledge the identity of the father when registering the child and choosing a name. This is pursuant to s. 10(3)4. of the Vital Statistics Act. The unfairness of this provision was acknowledged in the Supreme Court of Canada case of Trociuk v. B.C.(A.G.), [2003] 1 S.C.R. 835. In that case the court was focused on the rights of fathers to participate in the naming process after birth under the Vital Statistics Act of British Columbia. Like Ontario, the BC Act gave the mother the arbitrary power to leave the father's name off of the birth certificate. The Supreme Court concluded that allowing mothers to arbitrarily exclude fathers from the process violated the equality rights of fathers under s. 15(1) of the Canadian Charter of Rights and Freedoms. In that case, it was in the best interest of the child to have the father included on the registration certificate and be involved in the naming decision. It should be noted that some circumstances exist where it is both fair and reasonable for a father to be excluded in the birth registration process. These are situations where the father was abusive, threatening, or the child was a consequence of rape. These valid objectives of providing mothers the power to exclude fathers must be separated from situations where the choice to exclude Dad was arbitrary and unwarranted. The case of Trociuk is significant in that it acknowledges the equality of fathers and the importance of a child's name in establishing a genetic bond between father and child.* Justice Quinn of the Ontario Superior Court in the case of E.G. v. S.R., [2008] O.J. No. 2913, described the situation in the following terms:
In many of the cases dealing with the problem of "unacknowledged fathers", the court used its Parens Patriae jurisdiction to change the child's name by including the father's last name where it was excluded on the birth certificate. In Ontario, applications to change a child's name can also be brought under s. 17(1) of the Children's Law Reform Act after a declaration of parentage has been made. The test to be applied, in both instances, is the best interests of the child. In the absence of evidence of abuse, abandonment, denial of paternity, or rape, the courts will generally approve a change of name where the father's name was excluded arbitrarily by the mother (see the case of Ryan v. Scott, (2011) ONSC 3277). This is based upon the importance of the child's surname affirming the biological ties between both parents whose status is presumed to be equal in the life of the child. The best interests test, above, applies mainly to younger children who are too young to form a strong opinion on their name. Considerations for older children are certainly relevant but beyond the scope of this blog post. In addition to the age of the child and his or her relationship to each parent, the court may look at the names of siblings, whether child support is being paid, and other factors. A change of name can also be brought by the parent with "lawful custody" under the Change of Name Act. If more than one parent has lawful custody, the consent of that person is required. If the other person with lawful custody does not consent, an application can be made to dispense with that consent. Lawful custody means de facto custody and does not require a court order. The parent with de facto custody is the one with physical care and control of the child, controlling their place of residence, and making decisions on educational, medical, and religious matters (see K.A.B. v. Ontario, 2013 ONCJ 684). It is important to understand that a name change is an incident of custody (see Felix v. Fratpietro, (2001) 13 RFL (5th) 545). The Change of Name Act leaves the access parent without a right to prevent the custodial parent from changing the name of the child in the absence of an agreement or court order that prevents them from doing so. The access parent must be given notice of the change, but there is little the access parent can do to prevent the change in the absence of a prior court order or agreement. If a parent is successful in changing the name of their child after obtaining an order of parentage under s. 17(1) of the Children's Law Reform Act, as described above, their consent is required by the parent with lawful custody under the Change of Name Act for a further name change. This is the case even if the parent is an access parent without lawful custody. The same situation does not appear to be the case where the court orders a change of name based upon the exercise of their Parens Patriae power. It would be advisable to have a judge include in the order a term that prevents further name changes. This would avoid having the custodial parent retaining the ability to change the name back pursuant to the Change of Name Act. As a final note, it is important to bring the application in the proper jurisdiction. Applications made under s. 17(1) of the Children's Law Reform Act or by asking the court to apply it's Parens Patriae powers must be brought at the Ontario Superior Court of Justice or Family Court. Applications under the Change of Name can be brought at the Ontario Court of Justice, Ontario Superior Court of Justice, or Family Court. *I should note that my comments here apply only to biological fathers and not to couples who choose to have a child through surrogacy. It is not my intention to diminish or undermine the equality of surrogate parents. When it comes to cohabitation, the length of time matters. As your financial lives intertwine, a state dependency may be created. One partner may be entitled to spousal support if the relationship ends. Where one person controls much of the property or wealth, the other party may obtain a right to a portion of this property over time. This post will explore claims for spousal support and property claims in the context of unmarried partners living together. SUPPORT CLAIMS: |
It is not uncommon for a spouse to want to move out of a jurisdiction following a separation. The reasons could include employment, moving closer to family and friends, or following a new partner. The courts are often called upon to decide whether one parent can move with a child outside the jurisdiction. |
Either parent can seek an order which would allow or prevent a parent from moving the child outside the jurisdiction. The court will examine a number of factors in arriving a decision. They include:
As is the case in all decisions involving children, it is their best interest that must be of paramount concern. Where both parents offer a stable and nuturing home environment, a decision by one parent to move far away from the other parent presents the court with an uncomfortable dillema. The decision can be unpredictable, but here are some important factors to consider:
A. The Custodial Parent
The custodial parent controls the major decisions in a child's life. Presumably, the custodial parent is also the parent with whom the children spend the most time. It is in the child's best interest to have a happy, well functioning custodial parent. Considerable respect will be given to the wishes of the custodial parent to relocate, especially if a move would improve the custodial parent's emotial, psychological and/or economic well-being (see: Bjornson v. Creighton, [2002] OJ No. 4364)
In joint custody situations, if one parent is the "primary parent" and has taken over responsibility for the majority decisions, their choice of where to reside will be afforded greater respect (see Roth v. Carruthers [2000] OJ No. 5013 at para. 28-31).
If you want to prevent a move, it is important to retain and exercise custodial powers to ensure an equal footing when it comes to such major decisions. Joint custody, where both parents are involved in the major decisions and both participate equally in the lives of their children, will ensure that the views of each parent will be given equal weight. (Dix v. Thomas, [2006] O.J. No. 3457).
In spite of the above, there is no presumption in favour of granting a custodial parent's wishes to remove a child from the jurisdiction, away from the other parent. The custodial parent has a responsibility to act in the best interest of the child. Sometimes this will allow a move, but other times it requires the custodial parent to stay in the jurisdiction (see Gordon v. Goertz 2 S.C.R. 27 at para. 37).
B. Maximum Contact
Having regular and frequent visits with both parents is generally considered to be in the child's best interest. This is known as the maximum contact principle found in s. 16(10) of the Divorce Act, and s. 24(2)(d) of the Children's Law Reform Act. In custody disputes, preference may be given to the parent willing to foster a good relationship between the child and the other parent (see Corriveau v. Blair, 2005 ONCJ 470).
A decision on custody will be made before a judge makes a decision on where the child will live and with whom. In deciding a custody issue, a court can rely on a parent's plans to relocate outside the jurisdiction (see Hibbert v. Escano [2010] OJ No. 944 at para. 78).
The maximum contact principle is important in mobility cases. A move often significantly reduces access to a parent whom the child is used to seeing regularly. If the move is not necessary for a parent to meet the needs of a child, the maximum contact principle will likely prevail over the wishes of the parent to move (see Berry v. Berry, [2011] O.J. No. 5006).
The court is more likely to dismiss an application to relocate where the evidence indicates that the application is motivated, at least in part, by a desire to frustrate the other parent's access (see Wolf v. Wales, [2001] OJ No. 120 aff [2001] O.J. No. 4908).
Nevertheless, the principle of maximum contact is subordinate to over-all consideration of the best interests of the child (see Nunweiler v. Nunweiler, [2000] BCCA 300 at para. 28).
C. Stability and the Status Quo
In addition to giving weight to the wishes of the custodial parent, and the desirability of maximizing contact with both parents, the need for continuity and stability in the life of the child is a very important consideration.
A move that would take the child away from their friends, school, neighborhood and activities may result in a negative disruption and be contrary to the child's best interest (see Elliott v. Turcotte, [2009] ONCA 240 at para. 18).
Where the move would cause a disruption to a stable environment, this factor is of "prime importance." (see Young v. Young, [2003] OJ No. 67 at para. 28). Factors include a disruption to family, schools, and the community the child has come to know.
Conclusion
There are a number of competing interests and factors to weigh when determining whether a move is in the child's best interest. It is often a difficult decision for a judge to make, especially where both parents are committed to live in separate jurisdictions. It is an area where it is hard to expect parents to agree.
- The relationship between the child and each parent,
- The desirability of maximizing both parents contact with the child,
- The preferences of the child,
- The reasons for the move only if a move is required for the parent to take care of the child's needs.
- Disruptions to the child. (Gordon v. Goertz [1996] 2 S.C.R. 27 at para. 49)
As is the case in all decisions involving children, it is their best interest that must be of paramount concern. Where both parents offer a stable and nuturing home environment, a decision by one parent to move far away from the other parent presents the court with an uncomfortable dillema. The decision can be unpredictable, but here are some important factors to consider:
A. The Custodial Parent
The custodial parent controls the major decisions in a child's life. Presumably, the custodial parent is also the parent with whom the children spend the most time. It is in the child's best interest to have a happy, well functioning custodial parent. Considerable respect will be given to the wishes of the custodial parent to relocate, especially if a move would improve the custodial parent's emotial, psychological and/or economic well-being (see: Bjornson v. Creighton, [2002] OJ No. 4364)
In joint custody situations, if one parent is the "primary parent" and has taken over responsibility for the majority decisions, their choice of where to reside will be afforded greater respect (see Roth v. Carruthers [2000] OJ No. 5013 at para. 28-31).
If you want to prevent a move, it is important to retain and exercise custodial powers to ensure an equal footing when it comes to such major decisions. Joint custody, where both parents are involved in the major decisions and both participate equally in the lives of their children, will ensure that the views of each parent will be given equal weight. (Dix v. Thomas, [2006] O.J. No. 3457).
In spite of the above, there is no presumption in favour of granting a custodial parent's wishes to remove a child from the jurisdiction, away from the other parent. The custodial parent has a responsibility to act in the best interest of the child. Sometimes this will allow a move, but other times it requires the custodial parent to stay in the jurisdiction (see Gordon v. Goertz 2 S.C.R. 27 at para. 37).
B. Maximum Contact
Having regular and frequent visits with both parents is generally considered to be in the child's best interest. This is known as the maximum contact principle found in s. 16(10) of the Divorce Act, and s. 24(2)(d) of the Children's Law Reform Act. In custody disputes, preference may be given to the parent willing to foster a good relationship between the child and the other parent (see Corriveau v. Blair, 2005 ONCJ 470).
A decision on custody will be made before a judge makes a decision on where the child will live and with whom. In deciding a custody issue, a court can rely on a parent's plans to relocate outside the jurisdiction (see Hibbert v. Escano [2010] OJ No. 944 at para. 78).
The maximum contact principle is important in mobility cases. A move often significantly reduces access to a parent whom the child is used to seeing regularly. If the move is not necessary for a parent to meet the needs of a child, the maximum contact principle will likely prevail over the wishes of the parent to move (see Berry v. Berry, [2011] O.J. No. 5006).
The court is more likely to dismiss an application to relocate where the evidence indicates that the application is motivated, at least in part, by a desire to frustrate the other parent's access (see Wolf v. Wales, [2001] OJ No. 120 aff [2001] O.J. No. 4908).
Nevertheless, the principle of maximum contact is subordinate to over-all consideration of the best interests of the child (see Nunweiler v. Nunweiler, [2000] BCCA 300 at para. 28).
C. Stability and the Status Quo
In addition to giving weight to the wishes of the custodial parent, and the desirability of maximizing contact with both parents, the need for continuity and stability in the life of the child is a very important consideration.
A move that would take the child away from their friends, school, neighborhood and activities may result in a negative disruption and be contrary to the child's best interest (see Elliott v. Turcotte, [2009] ONCA 240 at para. 18).
Where the move would cause a disruption to a stable environment, this factor is of "prime importance." (see Young v. Young, [2003] OJ No. 67 at para. 28). Factors include a disruption to family, schools, and the community the child has come to know.
Conclusion
There are a number of competing interests and factors to weigh when determining whether a move is in the child's best interest. It is often a difficult decision for a judge to make, especially where both parents are committed to live in separate jurisdictions. It is an area where it is hard to expect parents to agree.
Ideally when two parents separate, their children should become their top priority. Parents who can communicate and cooperate following a separation will be able to arrive at a parenting plan that suits the needs of their children. Those needs will vary depending on their age, preferences and emotional ties to each parent. With the assistance of a lawyer, a parenting plan can be drafted and agreed to by the parents to ensure that parental conflict is minimized while maximizing the healthy adjustment of the child to the new family reality.
A basic function of a parenting plan is to set out when the children will be residing with each parent. The plan will provide a week-to-week schedule, as well as accounting for holidays, special occassions and summer vacations. A term can be put in place that would give the other parent a right to take care of the child if the other is unavailable during the child’s scheduled residency at that parent’s home. This will allow the child to be with a parent rather than a relative or babysitter for an extended period.
Some parenting plans will involve frequent communication and cooperative decision making by both parents on issues of education, healthcare, and extra-curricular activities. However, the plan will also be structured and specified to avoid uncertainty and conflict. The plan will account for minor, day-to-day decisions, which will be typically handled by each respective parent as they arise. It will also account for major decisions, such as a change of residence or school, which will require consensus. A process for dispute-resolution will be put in place.
The plan will not only deal with specific parenting issues, but will set out general guidelines for each parent to follow. These will include terms prohibiting each parent from denigrating the other in the child’s presence and respecting each other’s privacy and autonomy. The terms will also encourage each parent to foster a good relationship between the child and the other parent. The goal is for the child to have two parents who respect each other and work together for the child’s happiness.
Where parents are unable or unwilling to cooperate, a parenting plan may still be the best option to reduce conflict and create certainty for the child. Parenting plans can be tailored to divide the decisions between parents based upon their respective abilities and expertise. For instance, one parent can be involved in major decisions regarding the child’s education, and the other may make major decisions for the child’s extra-curricular activities, like sports or hobbies. Rules can be put in place to ensure communication occurs primarily via email and only in the case of necessities or emergencies.
A parenting plan is often attached to a separation agreement, making it a binding legal contract between the parents. This means that a parenting plan is enforceable by the courts. However, it is preferable that the parties resolve their differences in a way that minimizes time and expense. For that reason, most parenting plans will require the parties to negotiate or mediate any disputes that arise between them before involving the courts. Lawyers can assist in the interpretation and enforcement of parenting plans.
As children grow, their needs change and they develop preferences. A parenting plan can be changed as required from time to time to accomodate these developments. Changes can be signed by both parties and attached to the document with little time and expense.
If you have any questions about post-separation parenting plans or separation agreements, feel free to drop me a line and I would be happy to answer your question and assist: [email protected]
A basic function of a parenting plan is to set out when the children will be residing with each parent. The plan will provide a week-to-week schedule, as well as accounting for holidays, special occassions and summer vacations. A term can be put in place that would give the other parent a right to take care of the child if the other is unavailable during the child’s scheduled residency at that parent’s home. This will allow the child to be with a parent rather than a relative or babysitter for an extended period.
Some parenting plans will involve frequent communication and cooperative decision making by both parents on issues of education, healthcare, and extra-curricular activities. However, the plan will also be structured and specified to avoid uncertainty and conflict. The plan will account for minor, day-to-day decisions, which will be typically handled by each respective parent as they arise. It will also account for major decisions, such as a change of residence or school, which will require consensus. A process for dispute-resolution will be put in place.
The plan will not only deal with specific parenting issues, but will set out general guidelines for each parent to follow. These will include terms prohibiting each parent from denigrating the other in the child’s presence and respecting each other’s privacy and autonomy. The terms will also encourage each parent to foster a good relationship between the child and the other parent. The goal is for the child to have two parents who respect each other and work together for the child’s happiness.
Where parents are unable or unwilling to cooperate, a parenting plan may still be the best option to reduce conflict and create certainty for the child. Parenting plans can be tailored to divide the decisions between parents based upon their respective abilities and expertise. For instance, one parent can be involved in major decisions regarding the child’s education, and the other may make major decisions for the child’s extra-curricular activities, like sports or hobbies. Rules can be put in place to ensure communication occurs primarily via email and only in the case of necessities or emergencies.
A parenting plan is often attached to a separation agreement, making it a binding legal contract between the parents. This means that a parenting plan is enforceable by the courts. However, it is preferable that the parties resolve their differences in a way that minimizes time and expense. For that reason, most parenting plans will require the parties to negotiate or mediate any disputes that arise between them before involving the courts. Lawyers can assist in the interpretation and enforcement of parenting plans.
As children grow, their needs change and they develop preferences. A parenting plan can be changed as required from time to time to accomodate these developments. Changes can be signed by both parties and attached to the document with little time and expense.
If you have any questions about post-separation parenting plans or separation agreements, feel free to drop me a line and I would be happy to answer your question and assist: [email protected]