It is never our intention to “beat a dead horse”, as the saying goes, but when it comes to the caution family law clients need to exercise when it comes to electronic communications and social media, it cannot be said enough – be extremely careful about what you write, and post. The prominence of social media and the use of email today have fundamentally changed family law litigation. Oftentimes, family law litigants decide their own fate with the emails they write and their social media activity, both of which inevitably form part of the evidence adduced in litigation.
The case of Clark v Moxley, 2017 CarswellOnt 13011 (ONSCJ) illustrates that lesson well, while also reiterating a point this blogger made in a previous post (see January 23rd, 2017 blog post: From ‘Voice’ to ‘Choice’ – There is no Magical Age) specifically in this case that a 12 year old child’s wishes are not determinative.
In Clark, the issue of whether the parenting regime ought to change from a primary care arrangement (Mother) to a shared parenting arrangement went to Trial. The 12 year old male child had his own legal counsel, who reported to the Court that the child wished to move into a shared regime.
The Father’s emails to the Mother made it clear to Justice Sheard that he was both a) motivated by money (namely, the 40% rule with respect to child support) and b) had attempted to gain favor with his son by casting the mother in a bad light. Justice Sheard concluded, in large part based on the email correspondence presented in evidence, that the Father had acted improperly in an attempt to unduly influence the child. As a result, despite the child’s strongly expressed preference for shared parenting, Justice Sheard held that it was not in the child’s best interests. He further stated “a child of 12 may not fully appreciate the future consequences of a decision about schooling and primary residence”. This was a child who was described throughout as a bright, adaptable and well-adjusted boy. Again, we hear the Court remind us that the child has a “voice” but not a veto.
The facts of this case, including the age and noted maturity of the child as well as the result despite the child’s expressed wishes, are very similar to a case our firm argued in December 2014, P v B, 2014 ABQB 793 (see link under Reported Decisions for Associate Brett Coleman). In our case, too, the opposing party Father’s email communications to our client Mother did not help his case. Moreover, there was evidence of the Father attempting to influence and manipulate the child (some of which was supported by electronic records, some of which was not and left to a credibility assessment) and, ultimately, the Honourable Madam Justice B.E.C. Romaine concluded that despite his stated wishes the child did “not appreciate the extent of the disruption to his life that would ensue”. Interestingly, our client’s position was that the Father in our case was similarly motivated by money, although that was not a primary argument relied upon at the hearing.