Best interests of child
Ontario Court Discusses a Father’s Request for Cell Phone Records of his Ex-Wife and Daughter
The Ontario Superior Court recently reviewed a request by a father who sought the production of cell phone records of his ex-wife and his daughter to establish an alleged “purposeful, malicious and intentional” campaign by the ex-wife to sabotage his relationship with the daughter. In balancing the mother and daughter’s right to privacy, and the ability of the father to obtain information in support of his position, the court ordered limited disclosure of some records.
Father Requests Phone Records and Devices
The father in question filed a motion for disclosure, seeking:
- Production of un-redacted copies of all text and multimedia messages, call detail records, and bills from the mother’s phone number between December 2017 and the date of the motion;
- The child and mothers cell phones and tablet to be produced for examination while Telus gathers the above records.
The father also wanted the costs of obtaining the Telus records to be shared between the parties.
Father Claims Mother Purposefully Sabotaging His Visits with Daughter
The father made his request because he claimed that in January 2018, the daughter refused to go to his home after school. Her principal, school staff, and police officers were called in to respond to the refusal. These parties later told the father that the daughter had been “texting furiously” with someone throughout the duration of the dispute that day.
The father believes that the daughter had been texting her mother who had been directing her on what to do and what to say and dissuading her from going to his home. The father also believes that the mother continued to call the police that evening, alleging that the daughter was in danger in his care.
The father further alleged that in early February 2018, the daughter did not return to his home as she was supposed to do. He challenged the mother’s assertion that the daughter had called her to ask to be picked up at a friend’s house because she was afraid to go to her father’s home. The father believes that the mother influenced or convinced the daughter not to return to the father’s home as planned.
The father additionally asserted that several days later, the daughter left school grounds before he arrived to pick her up. He challenged the mother’s claims that the daughter had again called her to ask to be picked up at a local mall and believed that the mother had again influenced or convinced the daughter not to return to the father’s home as planned. The next day the daughter left school grounds once more before being picked up by the father, which the father again believed was a result of the mother’s influence.
Overall, the father believed that the mother was “purposefully, maliciously and intentionally” sabotaging each of the visits with the daughter. He also believed that the mother had deleted some relevant text messages between her and the daughter in violation of a previous court order that had obligated her to keep all records.
The father claimed that the detailed Telus records were necessary to verify whether the daughter or mother had deleted messages from their electronic devices, and to be able to show an increasing pattern of calls and text between the daughter and mother which would help him establish his assertion that the mother had been encouraging the daughter not to go to his house.
The mother, unsurprisingly, opposed the father’s request.
Disclosure of Documents
The court noted that this was a disclosure request falling under s.20(5) of the Family Law Act, which sets out a test to be met in determining disclosure matters:
20 (5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
- It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
- The information is not easily available by any other method.
- The questioning or disclosure will not cause unacceptable delay or undue expense.
The court noted that parts 2 and 3 of the test were clearly met here, and that the only issue was whether or not it would be unfair for the father to carry on the case without the information he was seeking.
The court found that the full scope of the father’s disclosure request was far too wide, and too disproportionate to the issues he had identified.
The court declined to make an order for the production of any of the daughter’s devices (including her cell phone and tablet), stating that:
Not only would such an order be a significant violation of [the daughter’s] privacy as a 13 year old teenager, it would have the effect of personally involving her into her parents’ dispute and cause her unnecessary harm. This child has been subjected to more interviews, questioning, probing, inquiries and scrutiny than most human being will likely ever be in a life time. Her mental health has continued to decline over the past months, and I have absolutely no intention to involve her more than she already is in her parents’ conflict and dysfunction.
The court also declined to order the production of the mother’s tablet, noting that there had been no evidence that would support a finding that she had ever used any electronic devices, other than her cell phone, to communicate with the daughter. The court noted, about the father’s request for the mother’s cell phone records:
I see no justification to providing the father with an unrestrained, blanket permission to poke into the mother’s privacy for a period of over four months, when the allegations of the father relate specifically to her communications with [the daughter] and on certain very specific dates.
The court did, however, order some limited disclosure of the information sought, noting:
… it would be unfair to the father to carry on his case without part of the disclosure requested. There is limited ability for the father to independently verify whether or not the mother was, in fact, “purposefully, maliciously and intentionally” sabotaging each and every visit and interaction he was to have with [the daughter] during the relevant period of time without seeing the text messages. While I agree with the mother that the evidence and records of the Children’s Aid Society and of the police, coupled with the principal’s evidence will likely shed the necessary light on what the mother did or did not do during the relevant period of time, without the need for invading her privacy in the manner sought by the father, she may still have presented herself in a certain way with these third parties but have acted differently in the background in her interactions with [the daughter].
The court ordered that copies of all text message and multimedia transmission data records, call records, and bill reprints for the four specific dates that the daughter refused to go to the father’s house be produced. These records were to be delivered within 30 days and the costs of producing the records were to be covered by the father.
The court also ordered the mother to:
- provide the father with a paper copy of all text messages exchanged between her and the daughter on the relevant days;
- make her cell phone available for inspection by either the father’s lawyer or another lawyer at the same firm (the inspection is to take place at her lawyer’s office for a period of no more than one hour and the father is not to be present);
- the inspection is to be restricted to verifying that the paper copy of the text messages between the mother and daughter on the relevant dates properly reflect the texts contained in the phone itself;
- the mother is not to inform the daughter that their text messages will be shared with the father.
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To speak with Jason Howie today, contact 519-800-1039 or reach out online. Jason has been a fixture of the family law community of Windsor and Essex County for over 25 years: many prospective clients come to Jason through referrals from current or past clients, and also through referrals from lawyers, accountants, medical professionals and marriage counsellors.