Henderson Heinrichs LLP

To Skype or not to Skype?

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio ) Published: June 30, 2010
Categorized: Custody and Access, Mobility.

There has recently been a flurry of cases referencing, examining or at least mentioning Skype in the context of access and mobility.  As is becoming increasingly known, Skype  is software which allows people to make voice and, by way of a webcam, video calls over the internet.

Inexpensive video conferencing has been available to the public through internet based applications for years now, but it seems to only be within the past year that the courts have taken real notice.   It is a truism that video conferencing is not true personal contact.  It is, however, at a higher plane than email or telephone communication, in that it provides child and parent with another level information, a level which heretofore has only been available in a face to face meeting.

In British Columbia, the majority of cases which reference video conferencing do so only as an option of communication proposed by the party seeking to move or as evidence of a party’s willingness to facilitate access:  See Betz v. Joyce 2009 CarswellBC 2339 British Columbia Supreme Court, 2009 where at paragraph 57, the court acknowledges the willingness of the party to engage in Skype communications.

In Novlesky v. Novlesky 2009 CarswellBC 2638 British Columbia Supreme Court, 2009, at paragraph 86, the court stated that, “Mr. Lage, the children’s grandfather, is adamant about the importance of maintaining the children’s relationship with their father. I find he and the plaintiff are genuinely committed to supporting it. The children’s computers will be equipped with Skype, a program by which both visual and verbal communication occurs on the computer.”

In only one case to date, however, has the court made a clear and unambiguous statement regarding the limitations of the medium as an access method.  In C. (E.L.) v. B. (E.S.) 2009 CarswellBC 3066 British Columbia Supreme Court, 2009, the court said at paragraph 153:   “If the plaintiff moves with the children there is an emotional loss which will be suffered by them. They are only ages 7 and 4. They will grow up with limited physical and emotional affection from their father.  Skype is not enough. They will not be able to participate in activities or events with their father.”

Clearly, the courts are aware of what Skype is not.  In Gauvin v. Gauvin 2009 CarswellBC 2520 British Columbia Supreme Court, 2009, we see the beginnings of the courts exploration of what Skype actually is.  In that case at paragraph 7, Mme Justice Satanove stated that,  “The plaintiff also promises to acquire Skype and to pay for regular long-distance telephone access. Obviously, electronic communication is not as desirable as in-person access, but it does allow for the child to keep in touch with her dad every day if she so wishes.”

Here, the service is equated with telephone access.  They are both “electronic communication”  and, unfortunately, no comment is made differentiating the benefits the court sees.  Would the inability to access video conferencing have negatively affected the Plaintiff’s case?

As video conferencing technology progresses and becomes cheaper, moving from computers to smartphones, and with the emergence of 3D video, it will be interesting to see how the court positions this medium within the context of access in general.

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