All You Need to Know about Evidence in Family Court
Evidence in family court, even for a child support modification, is dealt with by the general rules of evidence. Most evidence is admissible if it is relevant to the proceeding. However, it is important to note that even relevant evidence is not admissible when its probative value is outweighed by prejudicial effect, confusion or waste of time or where it is sought to prove something other than the issue in the litigation. For example, the Court will not admit a text message sent to your spouse that uses a profanity because it is not probative of anything for the judge to consider. The same text message that says you have hired a private investigator and have video of your spouse cheating on you may be probative to the issues before the Court.
Generally, factual testimony is admissible given the witness is competent and the testimony is relevant. Competence means that the witness is old enough and able to understand what his or her saying. Relevant means that the testimony tend to prove a point in issue. While this seems to be straight forward, to determine relevancy the Court when determining relevancy will look beyond that immediate point in issue to decide if something else is proven and whether or not that is also important . Thus, while your mother may be disallowed from testifying to her opinion that your spouse is a bad parent solely because of the interplay of you and your spouse in front of your child, her opinion of a babysitting relationship your spouse has had for years, may be relevant to the issues of child custody and timesharing.
Documentation must also be relevant and admissible. The higher the potential impact of the document, the higher the standard, Foundation has to be laid for the admissibility of the document. In other words, someone has to testify to its authenticity and how the document was created. This can be done either by the person who created or generated the document or someone familiar with the process. Your cell phone screenshot of the text conversation may be admissible as evidence because the instructions for taking a screenshot are likely available online, but your digital camera with watermark tagged photo is not likely to be admitted into evidence without testimony that the picture was not altered in any way nor can it truly be verified who took the picture.
Requirements for Admissibility of Evidence
The legal criteria for admissibility of text messages is what determines whether such texts should be admitted as exhibits in family court cases. While there are certain exceptions, generally the criteria for admissibility includes relevance, authenticity, and the lack of hearsay.
The first requirement is that the text messages must be relevant to the matter at hand. Just like documents produced by a litigant themselves, or documents produced in discovery by opposing parties, texts (or even emails) must be relevant to the issues for which the family court is determining the relevant facts. In other words, all documents and communications do not come in just because a party seeks to have them come in. Relevance is determined by the facts and circumstances at issue in the case. For example, where the issues concern custody of children, the text messages may need to be related to issues concerning the child(ren).
As discussed earlier, the second criteria is that the text messages or emails must be authentic. In other words, the party seeking to have them introduced must establish that the contents of the document (in this example, the text) are what they purport to be. This is usually established by the fact that the party asserting that these messages are from certain individuals has a familiarity with the style and substance of their contemporaries writing, or, for example, that the texts were in fact generated by the parties’ telephone or communication device(s). For example, in the case of Harris v. Kauffman, the New Jersey Court System admitted text messages from a cellular telephone where the plaintiff had produced the actual bills from the telephone service providers. The plaintiff had her husband’s telephone, and the bills that she received clearly and unequivocally identified each party’s phone numbers. Despite the fact that the Defendant did not "admit" to making or receiving the text messages or phone calls that were documented in the bill, the Court found that these communications were admitted as evidence.
The final criteria is that the documents that are proffered by a party designated as an exhibit cannot be hearsay. While the hearsay rule is very complicated, the general rule is that a witness may only testify about matters of which he/she had first-hand knowledge. The relevance of this rule to communicating by electronic means is the fact that while the text or email may contain out-of-court statements – which would be considered by a court to be hearsay – the Court could find one of the exceptions to the hearsay rule applies and permit the introduction of these documents. There are a host of exceptions to the hearsay rule, including those for business records, admissions, and dying declarations. If the documents that a litigant seeks to admit into evidence fall within one of those exceptions, it is likely that the documents will be admitted into evidence.
Proving Authenticity of Text Messages in Family Court
One common issue that arises in family law court is whether a spouse can even produce that text message as evidence of anything. No authenticated text message, no evidence at all. Sometimes it is a clean-cut case. Person A sends Person B a harassing text message with a threat. Person A later either denies doing so or says that Person B is lying and doctored the texts. So, case closed, right? Nope. Even if you have the most incontrovertible chain of evidence, often sounds too good to be true. Let’s take a look. The basic methods of authenticating a text message are the same as for other forms of evidence: The point to this is that even though the text messages in question appear to be and may in fact be authentic, that doesn’t mean that spouse A will just stand up in court and say "The texts I sent to spouse B are exactly that. I sent them. There they are." When that person is willing to admit to sending the texts, then authentication is easy. Okay, even if spouse is willing to say that spouse A did in fact send the texts, that does not prove that the content is what spouse B claims. So spouse B needs something to corroborate what spouse A sent spouse B. For example, spouse B and spouse C agree that they are going have lunch together that day. Then spouse B receives the text from spouse A that spouse B meet her at a hotel. Spouse B shows up that day for lunch with spouse C with a message in person from spouse A. In this precise example, it would seem that spouse B could establish that spouse A sent her the message and that it was the same message that we now want spouse A to admit to sending. This, however, is not always so cut and dried. Sometimes spouse B and spouse C don’t go out to lunch or they go to a different location or spouse B fails to bring it along or spouse C never even sees it. In that case, spouse B can testify to the generalities. Yes, spouse A sent her a threatening text that day; yes, spouse C and I had specific plans that day that spouse A would have known about; yes, this is my phone with my phone number; yes, spouse A’s phone number comes up as part of the chain of messages; yes, I still have that message on my phone. Pretty compelling stuff, but spouse A could technically still say "Oooops, I made a mistake; I meant to send those to spouse C who bullied me into wishing harm on your health." (You know the drill.) Now, italicizing those "yes" statements, I can see how spouse B and spouse C might back up what spouse B says. But spouse A is seated somewhere in the family law courtroom with spouse C. We also know that spouse C likes to push spouse A’s buttons, set her off, bait her. So, maybe spouse B isn’t harping spouse A’s chain of text messages in a chronological order, sequentially, with proof that she told spouse C or otherwise gave spouse A a heads up to save the chain and how it was saved. Not so easy because the law of authentication of text messages often brings us to the issue of hearsay, the exceptions to it, and the question of whether spouse B’s testimony or even spouse C’s testimony is admissible in evidence to authenticate that spouse A sent the series of text messages complained about. That’s where the parsing of the distinctions between Vinigars and Boylan gets its play.
Challenges in Using Text Messages as Evidence
While text messages can be a powerful addition to the evidentiary record in a family law case, they are also susceptible to objection. For this reason, it is important to consider the following factors when preparing to introduce any text message: The best way to address many of the evidentiary issues outlined above is to have a supportive affidavit or declaration prepared by someone who has knowledge of the text message. Doing so will also allow the admissibility of these messages to be laid out in detail in advance of the trial. If an objection to the admissibility of a text message is made at trial, having a pre-existing affidavit or declaration on file can be leveraged to rebut any procedural objections that the other side makes.
Examples and Cases Supporting Text Message Evidence
Evolving alongside the prosaic letter and the more sophisticated email, the text message has emerged as a mode of communication often at the forefront of dissolution matters. Texts, such as the example shown below, can provide more immediate evidence than perhaps even the most timely email exchange or voice message:
As a result, courts in Ontario have been faced with the task of determining the admissibility of text message evidence. As illustrated below, there is an increasing judicial awareness of the importance of these communications in the family law context.
In Shalagan v Shalagan, 2014 ONSC 4631, the court heard a motion brought by the husband seeking relief from support obligations. His motion was accompanied by text messages and photographs with the wife that purported to establish the wife was not in need of support.
In granting the resulting interlocutory order, Hon. Justice McGee of the Superior Court of Justice noted that:
[44] Text messages may be compelling evidence of the state of mind of the parties at a particular time. The court must carefully scrutinize the text messages, however, before they are used to substantiate a particular position. In my view, these text messages are sufficiently compelling to provide a basis to review at trial whether the wife was in need of support in November 2013.
The wife unsuccessfully appealed from this judgment. In Shalagan v Shalagan, 2015 ONCA 242, the Honourable Justice Pepall wrote at paragraph 22 of the unanimous decision on behalf of the Court of Appeal:
[22] Although the judge did not make the final decision on these very serious allegations, she did find in the interlocutory order that the text messages were sufficiently compelling and demonstrated a sufficient change of circumstances to warrant review at trial. This finding should be sufficient to a reviewing court to conclude that there is no compelling reason to interfere with the judge’s exercise of discretion.
A recent case, Chan v Chan, 2014 ONSC 5547, illustrates the increasing acceptance of text messages without being accompanied by usual expert authentication.
Honourable Justice Marc C. Garson of the Family Court at Toronto recently heard an application by GTA spouse who sought to reduce her spousal support payments after she spent a considerable period of time outside Canada working and enjoying a higher standard of living . At trial, the spouse disclosed text messages sent from his former spouse in which she threatened to disseminate to their children "shocking text messages" that would "ruin" him and detail "incredible truths" about him.
Prior to the trial, the spouse twice asked the court for disclosure of any letters, telephone conversations and text messages sent by the former spouse to their children but Justice Garson had declined the request on both occasions. Justice Garson allowed the text messages to be admitted in evidence at trial on the basis that spousal support litigation often involves communications between the former spouse and their children and these threats were relevant to the spouse’s character.
In Murphy v Grant, 2011 ONCJ 259 (CanLII), a case interpreting Ontario’s Children’s Law Reform Act, the court explained how it can "detect" the authenticity and reliability of a text message:
[14] This court easily accepts that a Blackberry text does not meet the standard identified in [R v Wray, 2006 CanLII 13179 (ON SC)] that a document must be a ‘document made in the ordinary course of business’ in order to be admissible under the Evidence Act. However, in R. v. Wray this court commented:
[The Evidence Act] does not provide any guidance or assistance regarding the measure of reliability necessary to introduce documents into evidence. The categories are not closed and they are potentially capable of including all forms of recorded communications. The admissibility of any form of recorded communications must turn on the applicability of the fundaments of the principled approach…
[15] Nonetheless, in Grant v. Murphy, et al., it is clear that the Blackberry text messages were direct communications between [the child and the mother] in real time. Grant v. Murphy has held that the authenticity and reliability of the Blackberry text messages can easily be detected by this court, with the contemporaneous date and time displayed on each text message, the name of the sender and the name of the receiver. Given the difficulty of accessing Blackberry phones by experts other than Blackberry technicians, this court cannot help but conclude that the Blackberry text communications between [the child and the mother] are authentic, reliable and admissible.
Tips for Collecting Text Message Evidence for Family Court
There are several practical steps that individuals can take to preserve and strengthen text messages’ role as evidence in family court. One important step is immediately backing up your cell phone. Most devices have an integrated file system for saving independent backups. This process is usually fairly simple and can be completed in a matter of minutes. That said, third-party software is sometimes necessary to access these files, and in rare cases, certain jurisdictions may consider this process enough to dismiss the validity of the evidence. Always check local laws for relevant statutes or precedents. Individuals can also increase the accessibility of these records by downloading support programs that provide for the recovery of lost messages. Many popular applications, including Tenorshare iPhone Data Recovery and Wondershare Dr. Fone Data Recovery, have free and paid versions that successfully recover deleted texts, emails, contacts, and call logs. Some programs even allow users to directly view and select data from iTunes backups. If you have hired an attorney to handle your case, they may refer you to a digital evidence specialist. These professionals are best equipped to focus on the data recovery aspect of the problem. Depending on the situation, they might recover deleted texts by accessing individual folders on the phone itself, rooting the device, or extracting data from the SIM card and memory card.
How Text Message Evidence Can Affect Outcomes
The impact of the admissibility of text message evidence within the Family Court can be substantial and may be determinative of a requested relief. For example, in a situation where one parent wishes to relocate (often a relocation is out of province or even out of country), the ability to adduce evidence that supports that position is often very important. That parent can sometimes bolster their own position by way of sharing with the Family Court texts between her or him and the child and a third party, who is at times an other family member.
In those circumstances, if the messages are positive and support a position for the applicant parent’s requested relief, the Family Court may hold that in considering the request, the Family Court will give weight to the positive over the neutral or negative messages or other relevant evidence or activities in the life of the child .
In other circumstances, the application itself is a request to vary the child support which had been payable prior to the initial application being made. In those circumstances, the parent seeking the variation of the child support that was payable must demonstrate there has been a material change in circumstances to vary the quantum of child support. Again, the texts can support or oppose that position. For example, the income of the payor party may have decreased and if so, there is a ready basis for the variation of the child support. In that circumstance, there is also a decision to be made by the Family Court with respect to the confidentiality of the income information, even if that income information is lower than the income declared in previous tax returns. Again, the evidence can support or oppose a particular position.