Stopping Cellphone Videoing in Custody Cases

Cellphone videos and photos have become an epidemic in family law cases.  Almost every client who comes in the door wants to show me a video of his or her spouse behaving badly.  This is particularly so in custody cases.  One parent videos (often surreptitiously) the other parent’s interactions with the child, in the hopes of obtaining “proof” of the other’s poor parenting.

These videos make me cringe.  My heart goes out to the child being filmed.  How must that feel? What message does it send? What can that parent be thinking? Well, it appears I am not alone in my concern.

In the November 2016 Whidden v Ellwood decision, Justice Pazaratz of the Ontario Superior Court of Justice takes cellphone videoing parents to task.  The case is worth a read, but the following are some of His Honour’s more pointed (and poignant) statements:

“They [parents who video] should stop pretending they’re assisting the court by assembling important evidence.”

“The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.”

“Access exchanges in high conflict files are already tough enough for children. Pointing a camera – or multiple cameras – at the interaction merely heightens the child’s unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.”

“Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.”

“How do we stop this epidemic of smartphone nonsense in Family Court?

1. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.
2. We need to make it clear to parents that 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.
3. Because 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.
4. 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!”
5. Perhaps the more cynical and prophetical message: “Showtime!”
6. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?
7. When parents routinely pull out their cameras, ready to “click” at the slightest false move — like gunslingers squaring off at the O.K. Corral – are they doing it out of love for a child? Or hate?
8. 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.”

And finally, the quotable Pazaratz:

“Perhaps we can borrow from social media to coin a term which suitably describes judicial disdain for this type of behaviour:

1. We’ve all heard of the “SELFIE”: A self-portrait, usually intended to make the subject look good.
2. How about a “SELFISHIE”: A parent taking a disturbing video to try win in court, oblivious to the emotional trauma they are inflicting on their child.”

In the case, not only did Justice Pazaratz refused to rely on any of the videos presented by the parties but the final order included a prohibition against the parties taking videos of each other in the future.  Well said and well done, Your Honour.