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Can Text Messages Amount to “Violence”? Maybe.

text-message

Can Text Messages Amount to “Violence”? Maybe.

In a recent Blog I discussed the concept of “violence” in the Ontario Family Law context, and in particular how its presence in the relationship could affect the right of the victimized spouse to be given exclusive possession of the matrimonial home upon separation, by way of a court order.

Under the governing provision, which is found in the Family Law Act, the violence can be either physical or emotional; the court is left with the task of determining when the appropriate level of either type of violence has been met.

Needless to say, this can be a challenging task. Over the years, courts have offered thoughts on the nature of the legal threshold.

For example, in a case called Kutlesa v. Kutlesa, the court reflected on the essential elements required to meet the threshold of “violence” for the purposes of the Family Law Act provision, writing:

The “violence” referred to in section 24(3)(f) [of the Family Law Act] must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.
Similarly, in a case called Hill v. Hill, the court concluded that that violence can be achieved “by words not deeds” and added that violence is “not restricted to violence which can be achieved solely by physical abuse.”

But these loosened definitions do not eliminate the requirement to meet the threshold set by law. In a recent case the court considered whether it can be met through the use of text messages, but emphasized that the overall context of the spouses’ relationship had to be considered. The court wrote:

I agree with the [wife’s] submission that domestic violence can be demonstrated on social media and by use of electronic communications. I also agree that the [husband’s] electronic communications to the [wife] were at times vulgar, offensive and threatening. The worst of the text messages came in April 2014, after the first time the [the wife] left the matrimonial home without notice … and after she had consulted with a lawyer. This was the same month that the parties had a terrible fight leaving the [husband] and [the child] with scratches. The [husband’s] electronic communications cannot be assessed in isolation. They are part of a broader picture of two parents bitterly fighting to control the process of separation and the custody of their daughter. This is not to excuse the [husband’s] communications. His response to the [wife] and her supporters was not acceptable. In this context, however, in my view, it would be a mistake to characterize such communications as domestic violence or abuse.

The bottom line is that “violence” can take many forms: emotional, verbal, and even by text message sometimes.

For the full text of the decisions, see:

Hill v. Hill, 1987 CarswellOnt 238, [1987] W.D.F.L. 2243, [1987] O.J. No. 2297, 10 R.F.L. (3d) 225, 6 A.C.W.S. (3d) 355

Kutlesa v. Kutlesa, 2008 CanLII 13187 (ON SC)

J.K. v. W.R.N, 2016 ONSC 3179 (CanLII)

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 RussellAlexander.com