Digest: Sylvestre v Sylvestre, 2018 SKQB 105

• Date: April 04, 2018

Reported as: 2018 SKQB 105

Docket Number: DIV 546/17 JCR , QB17491

Court: Court of Queen's Bench

Date: 2018-04-04

Judges:

• Brown

Subjects:

• Family Law � Custody and Access � Interim
• Civil Procedure � Evidence � Electronic Records - Admissibility

Digest: The parties executed an interspousal agreement in 2013 that arranged for the custody and parenting of their seven-year-old daughter. They agreed that they would share both custody and parenting. The respondent father applied to the court to assist in enforcing the agreement because he claimed that the petitioner had imposed a restricted parenting schedule on him and would not agree to return to the arrangement to which they had agreed. The petitioner argued that the child�s best interests required a revision to the shared parenting agreement because: 1) the respondent lived with his mother in a two-bedroom apartment. When their daughter resided there, she had to sleep with the respondent and his different routine disrupted her sleep; and 2) the respondent had not been fulfilling his obligations under the agreement which had resulted in her having more parenting time with their daughter and that was not due to her restricting the respondent�s schedule. The issues were: 1) whether a purported printout of certain text messages to the petitioner from the respondent be admitted. The petitioner had downloaded the messages from her cell phone to her computer using the Decipher Text computer application. The respondent objected to the admissibility of the printout. The petitioner offered an unsworn explanation of how the computer application worked; and 2) whether the parenting arrangement should be strictly enforced or be varied by order to align with the existing status quo.
HELD: The court found with respect to each issue that: 1) the computer printout was not admissible. The matter was governed by s. 55 to s. 59 of The Evidence Act. In order for the petitioner to meet the requirements of authenticity and integrity, she would have to provide evidence that she had compared and confirmed that the printout submitted as an attachment to her affidavit showed in printed form the electronic text messages sent to her from the respondent via her smartphone. To establish the integrity of the electronic records, the petitioner should provide evidence as to how the Decipher Text program works and why it should be considered a reliable way of accessing the original electronic...