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Although the Ontario Court of Justice recently allowed testimony via Skype under the Family Law Rules, using the video conferencing program in the courtroom could potentially create problems, says Toronto family law lawyer Christine Ann Marchetti.
“Although Skype could work to keep costs down for litigants, oral evidence is sometimes more than what a witness is saying,” explains Marchetti, an associate at MacDonald & Partners LLP.
“For example, is the witness on cross-examination looking to someone in the courtroom (maybe even one of the litigants) for reassurance or confirmation on an answer? This may seem like a little thing, but it can be very telling,” she says.
“There is also no real way, unless there are strict guidelines placed on how the testimony will be provided (for example, counsel in another jurisdiction will be assigned to monitoring) to ensure witnesses aren’t using aids in delivering their evidence, aren’t being fed answers and the like. I think without a uniform process on how Skype testimony will be admitted at a trial (perhaps amendments to the Rules) it should not be permitted unless there is no other way for that testimony to be heard,” she adds.
At the same time, Marchetti does think social media in general is set to play an increasingly larger role in the courtroom.
“As our communication style moves further and further away from in person or telephone conversation and more towards written communication, evidence at motions and at trial are often heavily weighted with e-mails, copies of Facebook pages, Twitter feed, text transcripts and the like. On a motion, where viva voce evidence is rare, a judge gets a real sense of what the parties actually “said” without the need for oral evidence,” she says.
As a result, litigants need to be “cool and calm” when sending messages and using social media outlets, as there is a lasting record of the communication, she cautions.
With sites such as Facebook, there is often a tendency to “over-share” and family issues can become common knowledge among a child’s 665 “friends.”
“More and more, we see the use of Facebook in affidavits, as evidence at trials and the like. Constantly updating one’s status with information about where you are, who you are with, and what you are doing can sometimes impact upon your position within your litigation; this is true for both the litigant and the child(ren) of litigants,” she explains.
While there are also many positives when it comes to instant contact through text messaging, Marchetti says that people often type what they wouldn’t say to someone in person.
“In the case of separated parties, we see more and more ‘text wars’ wherein each party takes jabs at each other in one or two lines of text. Transcripts of these exchanges get attached to affidavits, and parties can ultimately questioned about their messages at trial if the case advances that far. We see this with email messages as well, but to a much lesser extent; people seem to favour text messaging today and a lot more thought often goes into an email message so people are less likely to react emotionally and in the moment,” she says.
Still, Marchetti notes that the use of social media is very promising, when it comes to encouraging and facilitating maximum contact between parents and children in situations where there has been a breakdown in the adult relationship.
“I also think that more and more in custody and access cases, judges will make decisions that include Skype and other social media to keep parents connected to their children. Also, in high conflict cases, parents who may not be able to communicate effectively in person, may be able to communicate well by way of written means, especially if there are some guidelines surrounding those means; this may even have a real impact between sole and joint custody in these cases,” she says.
“Specifically, the use of Skype and even Apple’s ‘FaceTime’ (which can be used on the iPhone) means parents can connect with their children in a real way, even if they are not in the same physical space. Parents can ‘tuck their children into bed’ read stories to them, have their child show off an “A” on a paper or a piece of art from nursery school,” she adds.
“This type of media would be especially helpful in situations where one parent lives a fair distance from the child(ren) and access is not as frequent. Parents and children would feel less like they are ‘missing out’ on the child’s growth and development and there is a real sense of contact,” says Marchetti.