“When it comes to family law in Ontario, the child(ren) is the primary concern; his or her safety is paramount compared to anything else,” said Paul Mazzeo, principal of Mazzeo Law, “However, parents should avoid using recordings of their children when involved in a family and law dispute unless the child’s safety is at risk and there are no other methods to prove it.”
He used a hypothetical situation that involved a parent telling a child to relive the way they were abused or mistreated while they got it on camera.
“That makes me incredibly uncomfortable — as a person and a lawyer,” he said, adding that he hasn’t had to deal with that specific set of circumstances in court, “I would be cringing if I was the lawyer bringing that into court. The kids would be the victims in that scenario.”
If media documentation is necessary, then it should be done without the child having any knowledge of it. However, Mazzeo also added that each case is different and determining what is admissible occurs on a case-by-case basis. He claimed that media evidence can prove useful if there is noticeable abuse, but again, the recording should be done without the knowledge of the child, especially if the said recording is meant to be used against their other parent.
“The only way I’d feel completely comfortable with it is if two consenting adults were having some kind of exchange and both knew that it was being recorded,” Mazzeo said. “If you’re using video or audio to trump up the evidence against your former spouse, I think that’s repugnant, to be honest.”
Mazzo claimed that all the judges he’s come before have always been sensitive to the needs of the child and thought about the way the resulting litigation may impact them. He worked on a case where a child was malnourished and had been abused by one parent, and his client took photographs of the child’s injuries as evidence.
“In that instance, I used the pictures because I thought they told a story,” Mazzeo said, adding that the primary issue was the protection of the child.
But overall, he would prefer to not use recordings or media involving children in a quarrel between two parents.
“It’s a very sensitive and difficult thing, especially when we’re talking about kids,” Mazzeo said. “It’s a slippery slope, and there are better ways to get evidence.”
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