Family disputes can become highly emotional, very quickly. Particularly when children are involved, parents may be tempted to resort to tactics that are not in their best interest, driven by emotion rather than common sense. A recent emergency hearing about the issue of parental mobility made headlines after a father submitted an affidavit to his lawyer to be included as part of a hearing being held to determine whether the mother was permitted to relocate, presumably with one or more of the couple’s children.
As part of his evidence to support his position objecting to the move, the father swore an affidavit in which he included explicit nude photos of the mother, with a presumed intention to raise questions about the mother’s character. However, the inclusion of the photos has instead raised several questions regarding the use of intimate images in a family law context and resulted in professional fallout for the father’s lawyer. Further, the Law Society of Alberta has now referred the matter to the province’s solicitor general in the event the Crown feels it necessary to file charges against any of the individuals involved for their actions.
Emergency hearings can happen quickly, creating an urgent need to gather and submit the necessary evidence. In the case at hand, the father submitted a sworn affidavit to his lawyer which included explicit photos of his former partner. Upon reviewing the affidavit, with submissions due for the hearing the following morning, there was no time to remove them or otherwise alter the document since it had already been sworn. The lawyer consulted with colleagues and ultimately decided to submit the affidavit as it was rather than prejudice her client.
Upon reviewing the contents, the mother’s lawyer objected to the photos, and they were redacted before the affidavit was filed with the court. However, the matter did not end there. The lawyer was recently reprimanded by the Law Society for her role, however reluctant, in submitting the photos to the court. Further, the matter has now been referred to the solicitor general as the submission may have violated the Criminal Code.
The relevant provision under the Criminal Code reads as follows:
162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
The definition of an intimate image includes a photo or video depicting a person who is fully or partially nude, and/or engaging in sexual activity. At the time the images were captured, and at the time it was distributed, the person depicted in the image must have had a reasonable expectation of privacy. In this case, the mother had presumably taken the photos for personal use, never having expected they would be used in a public forum as part of a family law hearing.
In certain cases, it may be necessary to point to personal photos or videos in order to establish characteristics that may threaten the safety or wellbeing of a child in a family matter. Most decisions involving children, such as parenting time, decision-making ability, or mobility, are decided solely in the context of the child’s best interests. If a parent is engaging in activities such as illegal drug use, excessive drinking, or other activities that pose a threat to a child’s wellbeing, these images may be valid as part of the evidentiary record.
However, nude photos will rarely be relevant. This is not the first time a parent has submitted intimate images in an attempt to call the other parent’s character into question. In a 2016 Ontario decision, J.S. v. M.M., a father included intimate photos and copies of explicit text messages in an attempt to call the mother’s character into question on a motion for temporary custody. The judge in that case very clearly stated that this evidence had no bearing on the matter at hand, saying:
Do nude pictures of parents help judges decide who should get custody? A silly question? Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone? And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?
If the objective was to humiliate the mother, undoubtedly the father succeeded. But how does humiliation help in family court? How does irrelevant and scandalous information help a judge determine the best interests of the child More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation? …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 technology and social media.
When a parent attempts to use personal images such as the ones in the case discussed above in an attempt to sway a court in their favour, it will often backfire. This situation appears to simply be a case of a father attempting to use revenge porn to protect his access to his child(ren), however, he may now be facing potential criminal charges. While he did not publish these photos on a website or send them to friends, he did send them to several people with the intent they would form part of the record in a public hearing. It remains to be seen whether any charges will follow, but parents should be cautioned to avoid these tactics in their own cases.
If you are or have been the victim of revenge porn, you should contact the police immediately to report the offence. You should then seek legal advice to determine your options for civil remedies against the offender, and Mincher Koeman can help. Please contact our office to make an urgent appointment to discuss your matter with one of our lawyers by calling us at 403-910-3000 or by contacting us online.
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