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Texting and Family Law – Top 3 Things to Know

Texting and Family Law – Top 3 Things to Know

Virtually everyone texts these days. In the context of Family Law disputes, it can be a useful tool for short, informative exchanges between separated spouses, for example to efficiently communicate on matters relating to the day-to-day care and custody any children they share.

But in the hands of some former couples, they can serve as a high-tech medium for thinly-veiled hostility, confrontation, acrimony and confusion.

Here are the top three things you need to know about text messages under Ontario law:

1. Your texts can tell a judge a lot about you.

In a case called Williamson v. Massinger, the court scrutinized a series of text messages between the separated parents, and found them very helpful in fully understanding the dynamics of the relationship between them. For example, the court was able to rule on the mother’s lack of credibility, based on inconsistencies in her text messages about matters such as her lingering feelings for the father, and her view of his parenting. Other texts demonstrated the mother’s manipulative nature: one of them included a threat – which later materialized – that the father would no longer get to see his child until a court order was in place.

2. Texting your spouse can constitute “violence”.

As I’ve written before “In Family Law, Can Text Messages Amount to “Violence”?” , abusive text messages can sometimes amount to “violence” by one spouse against the other in certain Family Law contexts. For example, in a case called Menchella v. Menchella, the husband’s texts to the wife were found to have met the definition of “violence” under the provisions of the Family Law Act, which finding allowed a court to order that the wife should get exclusive possession of the matrimonial home pending trial. (And that finding was later upheld on the husband’s motion for leave to appeal).

3. Texts can become evidence, and that can run up your court costs.

The exchange of text messages between spouses can become evidence for a later trial, in the same way emails, phone calls, faxes and other similar communications do. But the problem with texts is that they can be quickly (and one might say, indiscriminately) sent, and can quickly tally in the hundreds. This was precisely the case in Martin v. Czarniecki, where the court lamented the fact that “the trial was unnecessarily lengthened by the exhaustive cross-examination of the applicant on the hundreds of emails and text messages” that “achieved little to advance the case or help me to determine the best interests’ of the child…”

For the full-text of the decisions, see:

Williamson v. Massinger, 2011 ONSC 7733 (CanLII) http://canlii.ca/t/fpgs6

Menchella v. Menchella (2013), 2013 ONSC 965; refusing leave to appeal 2012 ONSC 6304 http://canlii.ca/t/fwl9n , http://canlii.ca/t/ftmth

Martin v. Czarniecki, 2013 ONSC 2029 (CanLII) http://canlii.ca/t/fx04f

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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