Law Times

PAGE 6 COMMENT Law Times Group Publisher . . . . . . Karen Lorimer Editorial Director . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . .Kendyl Sebesta Staff Writer . . . . . . Michael McKiernan Copy Editor . . . . . . . . Katia Caporiccio CaseLaw Editor . . . . . . Lorraine Pang Art Director . . . . . . . . . Alicia Adamson Account Co-ordinator . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . Derek Welford Advertising Sales . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter School wrong to welcome Charles Smith O ntario Court of Appeal Justice Stephen Goudge was clear in his criticism of Charles Smith in his 2008 report on the province's child pathology system. "People complained repeatedly about Dr. Smith's failure to produce reports in a timely fashion; his unre- sponsiveness; his carelessness; and the inconsistencies between his written re- ports, his pretrial comments, and his sworn evidence," Goudge, commis- sioner of the public inquiry into the system, wrote. It was shocking, then, to learn last week that an eastern Ontario school had welcomed Smith as a guest speaker on the role of pathologists and DNA. Given his role in a litany of wrongful convictions — many of them against parents and other family members — in child death cases, Smith is hardly a role model or a legitimate authority on pathology and DNA. As several media outlets reported last week, Smith gave the talk to about 30 Grade 11 students at Prince Edward Collegiate Institute in Picton, Ont., in late October. Th e Toronto Star quoted a school offi cial noting that a student in the class has a family connection to Smith. Th e school board is now in- vestigating how Smith ended up ap- pearing before the class and whether it needs a centralized process for review- ing who gets to speak to students. Th e fact that Smith would think it's fi ne for him to speak on a subject that was the source of his disgrace and that led to the revocation of his licence to practise is an aff ront. Th e fact that someone at a school would ignore those issues is equally outrageous. Smith obviously knows something about DNA and the role of patholo- gists. But his knowledge fell far short of the expertise required of someone who conducted more than 1,000 child autopsies. As we know now, Smith made repeated mistakes that led to criminal charges and convictions of people who had done nothing wrong. Smith harmed many people. Th e most grievously aff ected were the par- ents wrongfully implicated in their children's deaths, but society has suf- fered in many other ways. Th e costs of Smith's work have been enormous, of course. Not only did the province have to pay for Goudge's inquiry, it continues to face the legal fallout of the wrongful convictions, including through the compensation scheme it set up last year as well as lawsuits by those aff ected. Moreover, Smith's work cast a dark cloud over our justice system. It showed how fallible it can be when it places excessive trust in expert witnesses like Smith. So many people saw fault in Smith's work along the way, but it took far too long for anyone in a position of authority to do anything about it. Smith has no business holding himself up as an authority on DNA or pathologists anywhere in this prov- ince. Th e Picton school, as the justice system did so belatedly, should have known that. — Glenn Kauth Couple's battle shows dangers of text messages A notable court decision this summer provides a good example of how electronic communications by parents in the age of text messaging can fuel the high- confl ict fi res that we as lawyers need to be ever mindful of. Th e case, Dephoure v. De- phoure, also demonstrates solid judicial consideration of the re- alities facing children in high- confl ict parenting cases as well as contempt issues. According to the ruling of Superior Court Justice Gordon Lemon, the parties had joint custody of their fi ve-year-old daughter who resided primar- ily with Tracey-Lynn De- phoure. Wayne Dephoure had generous access, however. As is so often the case, the catalyst for renewed confl ict was a new love interest entering the picture of one household. In this case, Wayne began seeing a new woman, a situation Tracey- Lynn wasn't happy about. As a result, she began what appears to have been a text-messaging campaign against Wayne and his choice of partners. Tracey-Lynn warned her ex-husband that their daugh- ter wasn't to spend time with his new girlfriend until the relationship was a "solid" one. More seriously, however, she withheld his access to their daughter on several occasions, including by phone, over claims that it was necessary to protect the child from this new and uncommitted relationship. As a result, he brought a con- tempt motion against her. In response, Tracey-Lynn brought her own motion seek- ing a fi nding of contempt and a change of custody in her fa- vour. Alleging he had breached the original court order him- self, she also wanted a change in the access schedule and vari- ous other restrictions against Wayne. Lemon was quick to note that Tracey-Lynn hadn't prov- en her allegations. Moreover, she admitted to intentionally withholding the child. For its part, the court completely discounted her excuse of try- ing to protect the daughter from exposure to Wayne's new Family Law By Marta Siemiarczuk girlfriend. Th ere was nothing in her evidence to suggest that the girlfriend was a bad wom- an or infl uence or somehow an otherwise inappropriate person to expose the child to. It's not clear from the deci- sion whether there was any cre- dence to the allegations against Wayne. What's certain, how- ever, is that the text messages to him about his new girlfriend were the catalyst for the con- tempt fi nding. Lemon notes that the record contained the messages, which he described as "disgusting and vile." Th e decision reproduced only a few bits. What these messages did, as is apparent from the reasons, was to com- pletely discount Tracey-Lynn's credibility on the real reason behind her decision to with- hold access on three occasions. www.lawtimesnews.com Lemon held that her con- cerns weren't about the length of the relationship with the new girlfriend; rather, she simply didn't like her. In concluding that Tracey- Lynn was in contempt, Lemon gave her three months within which she could purge the fi nding rather than subjecting her to any form of penalty for it. He put very strict conditions on communication and access, including makeup provisions for Wayne. Th e judge further dismissed Tracey-Lynn's mo- tions and cautioned her that if her behaviour continued, the court may very well change cus- tody in her ex-husband's favour. Th e matter was to come back before Lemon in three months' time for a fi nal determination. Th e decision is encouraging as a form of high-confl ict manage- ment by the judiciary, especially as an order to pay a fi ne o r costs or even of imprisonment would certainly do little to de-escalate the problems or have any benefi - cial impact on the child. What this case further ex- emplifi es is that in the age of November 7, 2011 • Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign addresses. Single copies are $4.00 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Eman Aboelsaud at: eman.aboelsaud@thomsonreuters.com or Tel: 416-609-5882 Ext. 2732 or Fax: 416-649-7870. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call Karen Lorimer at 416-649-9411 karen.lorimer@thomsonreuters. com, Kimberlee Pascoe at 416-649-8875 kimberlee. pascoe@thomsonreuters.com, or Sandy Shutt at sandra.shutt@thomsonreuters.com. Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. the Internet and instant reply in written form by text or e- mail, we need to spend a great deal more time in managing our clients' communications. I often hear from clients that text messaging is just one of those things that you do instantly without thinking it through too much. At least with e-mail, people gener- ally seem to re-read a message before hitting send. It seems much less so with text messag- es. And every day, they become easier to download and keep as evidence for the future. Gone are the days of be- ing able to have an argument and then have it disappear into the air. It's far too easy for all of those things said in the heat of the moment to solidify into evidence because texting is be- coming a much more prevalent mode of communication. Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca.

• Cover
• Justicia Extended
• Texting Dangers
• Focus On Family Law