Part I: Giving Evidence
Although Skype has a number of applications, one of the most popular appears to be its internet based real time video-conferencing format. Skype to Skype video calls are free of charge and can link people anywhere around the globe. In today’s and in my August 8th , 2012 post, I will look at two ways Skype technology has been used in family law: first, as a way of permitting parties outside of the jurisdiction to give evidence and, second, as a means of keeping parents and children connected.
Skype technology was used to permit a witness to be cross-examined in the recent Ontario Court of Justice case of Paiva v Corpening. Here, the father brought a variation application seeking access to his children, ages 9 and 8. The father had not seen the children in four years, as he was previously denied contact by the court due to his violent behaviour and alcohol and drug addiction. The mother and children had moved to Denmark and were living there with the mother’s new partner.
Normally, in accordance with the rules of evidence, the Rules of Civil Procedure and the Family Law Rules, evidence on an application is viva voce. That is, the witnesses are present in court to give their evidence in chief and to be cross-examined. In recent years, due to packed court calendars and the limited judicial resources available, courts have allowed evidence in chief to go in by way of affidavit, but required that the affiants be present for which is what was ordered in Paiva. Counsel for the mother brought a motion to permit his client and her new partner to be cross-examined at trial by Skype, as they could not finance the trip to Toronto and one of them had to remain in Denmark to care for the children.
Justice Ellen Murray heard the motion and allowed the Skype cross-examinations. Her Honour accepted the mother’s unchallenged evidence that Skype was a clear and reliable means of securing the mother and her new partner’s testimony. Since the Family Law Rules do not yet provide for evidence via Skype, Justice Murray looked to the Rules of Civil Procedure. Her Honour acknowledged the general principle that evidence and argument should be presented orally in open court whenever possible, so as to enhance the court’s ability to make findings of credibility. However, Her Honour held that this principle must be balanced with the objective of handling family law cases fairly and efficiently. Justice Murray found that the court would be able to assess the credibility of the mother and her new partner’s evidence on cross-examination if the Skype technology functioned properly. Her Honour relied on other civil cases where Skype evidence had been permitted. Justice Murray held that Skype was interactive technology where questioning was conducted in real time, which gave the trier of fact the opportunity to assess the demeanour of the witness. Her Honour found that the father would suffer little or no prejudice to his counsel’s ability to cross-examine, whereas the mother and her partner would be prejudiced by having to travel to Toronto.
The trial in Paiva is not over. Counsel will be making closing arguments to the court at the end of July. When all is said and done and a decision rendered, it will be interesting to see what weight the trial judge gives to the evidence of the various players and the impact, if any, of mother and her partner’s cross-examination via Skype. Stay tuned.