Skip to content

Posts from the ‘Texting’ Category

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

Appeal Court Rules on Privacy of Text Messages

iphone

Appeal Court Rules on Privacy of Text Messages

A just-released criminal case from the Ontario Court of Appeal has some interesting things to say about the privacy of text messages whether they are subject to constitutional protections – and it may have some trickle-down effect in the Family Law realm someday.

The accused was convicted of multiple firearms offences, which convictions hinged squarely on certain text messages between two other parties (one of whom was a co-accused) in which gun trafficking was discussed.

In considering whether there had been a breach of the Charter in connection with the admission of that text evidence, an application judge held that there was no expectation of privacy in connection with the text messages found on the co-accused’s iPhone. Specifically, that judge said:

… I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

The Appeal Court was asked to rule on whether this conclusion by the application judge was correct. Two out of three judges on the panel agreed that it was:

There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient. In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.

For example, the use of pseudonyms and coded language in text messaging (generally in the context of criminal activity) is often used to disguise who is speaking in a text message and the subject matter of the message.

Because many contextual factors can tip the balance in either direction, it must be that the objectively reasonable expectation of a text user in a particular case should be assessed on a case-by-case basis, not on a broad presumption about how text messaging is used in society…

Admittedly, this was a criminal case, and it was handed down by the court along with two other criminal cases, R. v. Jones and R. v. Smith, each of which had similar outcomes. How and whether these rulings affect other areas of the law, including Family Law, still remains to be seen.

For the full text of the decisions, see:

R. v. Marakah, 2016 ONCA 542 (CanLII)

R. v. Jones, 2016 ONCA 543 (CanLII)

R. v. Smith, 2016 ONCA 544 (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.

Tempted to Post Some Revenge Porn? Read This.

revenge

Tempted to Post Some Revenge Porn? Read This.

For those embittered Ex’s who are tempted to wreak revenge on their former partners after a break-up, take note: the Ontario Courts have just expanded the realm of tort law to cover certain breaches and invasions of privacy. In one very recent case, it cost a disgruntled ex-boyfriend $100,000 in general, aggravated and punitive damages.

In Jane Doe 464533 v. N.D., a woman’s ex-boyfriend had posted an intimate video of her online at a pornography website after their break-up, without her knowledge or consent. He also showed it to members of their mutual social circle. The court described the back-story this way:

The factual background may be summarized fairly briefly. The parties went to high school together in a small Ontario city, where they started dating while they were both in Grade 12. Although they broke off that formal relationship, they continued to see each other romantically throughout the summer and the fall of 2011. By the fall of 2011, the plaintiff and the defendant were both 18 years old.

In September 2011, the plaintiff was living in another city while attending university. Despite the fact that they had broken up in July 2011 and were no longer “boyfriend and girlfriend”, she and the defendant communicated regularly by Internet, texting, and telephone and continued to see each other when she returned to visit her parents’ home.

In August 2011, the defendant began asking the plaintiff to make a sexually explicit video of herself to send to him. For some time, she refused to do so, but the defendant kept asking her repeatedly. He sent her several intimate pictures and videos of himself, and told her that she owed him a video of herself in return. She did not want to do so, but she ultimately recorded an intimate video of herself in November 2011. Before she sent it to the defendant she texted him, telling him she was still unsure. He convinced her to relent, and reassured her that no one else would see the video. Despite her misgivings, due to pressure from the defendant, she “caved in” and sent the video to him.

In early December 2011, the plaintiff learned that the defendant had posted the video she sent him on an Internet pornography website under the “user submissions” section of the website. As posted by the defendant, the video was titled “college girl pleasures herself for ex boyfriends (sic) delight.” She further learned that the defendant had been showing it to some of the young men with whom they had attended high school. She later learned that the video had been posted online on the same day she had sent it to him, and that its existence had become known among some of her friends.

After finding out about the video, the woman was “devastated, humiliated, and distraught”; she became severely depressed. She experienced panic attacks and had to see a school counsellor for over 1.5 years to deal with the emotional fallout. The court also noted the effects on the woman were long-lasting:

Even today, more than four years after the incident, she is emotionally fragile and worried about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships. She continues to be distraught about the incident and afraid that these feelings will haunt her for a long time to come.

The court also noted that although the video was actually on-line for only about three weeks, there was no way of knowing how many off-line copies had been made and were still in existence.

The woman successfully sued the ex-boyfriend for breach of confidence, intentional infliction of mental distress, and invasion of privacy (and obtained default judgment against him since he had not filed a defence). Her damages were set at $100,000, including $25,000 in punitive damages to reflect the ex-boyfriend’s high-handed, reckless and arrogant disregard of the woman’s rights, as well as the fact that he had not apologized or shown remorse.

For the full text of the decision, see:

Jane Doe 464533 v. N.D., [2016] O.J. No. 382, 2016 ONSC 541

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

Thinking of Snooping on Spouse’s Email? Read This First

snooping

Thinking of Snooping on Spouse’s Email? Read This First

If you are involved in a divorce or separation, you may still have access to your spouse’s personal e-mails, and it may be tempting to read them. But that is precisely what got a husband in trouble with the court in a case called Golchoobian v. Vaghei.

The former couple, who were now involved in divorce proceedings, still owned a clinic together and both continued to work there pending full resolution of their legal issues. The husband was caught on the clinic’s security cameras using the reception-area computer to access his wife’s personal e-mail. He was also heard in an audio recording telling someone else certain information about the wife that he could only have known by looking at her e-mails.

At least one of those e-mails had been written by the wife to her lawyer, and this gave rise to a legal issue about whether by accessing them the husband had deliberately violated her solicitor-client privilege. In other words, the wife had justifiable concerns that the husband had gained access to sensitive and private information contained in hundreds of emails to and from her lawyer, which would reveal her litigation strategy in the divorce case against him.

As a threshold determination, the court held that the e-mail in question involved the wife asking for (and the lawyer giving) legal advice that was intended to be confidential. It was therefore subject to solicitor-client privilege, which is a fundamental aspect of the Canadian legal system designed to preserve the confidentiality of information passing between a client and his or her lawyer.

Next, the court did not hesitate to find that the husband deliberately accessed his wife’s personal e-mails and that his explanation to the contrary (that he had come across them while looking at business e-mails for the clinic) were simply not truthful. This was a deliberate breach of the wife’s solicitor-client privilege on the husband’s part, coupled with lies to try to cover up his conduct, and deserved significant court-imposed sanctions.

Although the court stopped short of imposing a hefty fine or striking out the husband’s court pleadings altogether, it ordered him to pay the wife’s full costs of the motion she was forced to bring because of his misconduct. The court also ordered the husband to provide an Affidavit confirming what documents he obtained and what he had done with them, and required him to give an undertaking to the court that he will not repeat the offensive behaviour.

Finally, the court also warned the husband that:

• He must be vigilant to observe the wife’s right to solicitor-client privilege;

• He must comply with the Family Law Rules, the Rules of Civil Procedure and any orders or judgments;

• He will be exposed to serious consequences should he be found to violate those Rules, judgments or orders;

• Future transgressions would attract more serious consequences, including striking his pleadings;

• The consequence of his conduct would “remain a stigma” throughout the remainder of the proceedings.

For the full text of the decision, see:

Golchoobian v. Vaghei, 2015 ONSC 1840 (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 www.RussellAlexander.com

Top Divorce Blogs of 2013

top 10

Top 10 Familyllb’s Blogs of 2013

Well it has been another busy year for us and our bog has been honoured with a Clawbies Award as one of Canada’s top legal blogs.  Thank you to everyone for your continued comments and support.

Here are some of our Top 10 Blogs for 2013:

Number 10: Top 5 Things Self Represented Litigants should know about conducting a trial10.1

As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.

 

Number 9: Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?9 9 9

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

 

Number 8: Husband Downgrades Job, Then Quits Altogether – But Support Stays the Same8

This was a case which shows that a voluntary change in circumstances – including a significant reduction in income – does not necessarily mean that a parent’s obligation to pay child support will be reduced correspondingly.

 

Number 7: 5 Ways to Make Sure Your Separation Agreement is Valid 7

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog was a fan favorite in 2012 and continues to be popular as it provides a list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 6: We’re Officially Separated – Can I Change the Locks on the House? 6

When a couple first separates under contentious circumstances, I will often get questions about what each party’s respective rights are in the early stages, i.e. before the long process has started of formally dividing up their assets and dealing with any support and child-related issues. One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.

Number 5: Texting and Family Law – Top 3 Things to Know5.1 bmp

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.

 

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit 4

This blog was also a fan favourite in 2012. Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

Number 3:  What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples3

The concept of “material change” involves the notion that a court-imposed order requiring a parent or spouse to pay support may have been fair at the time it was handed down, but subsequently becomes unfair due to unforeseen circumstances. Where a later court finds that such “material change” has taken place, it may have the authority in the right circumstances to vary the initial order accordingly.

This determination of what constitutes “material change” is not always straightforward. Indeed, some scenarios may intuitively seem to qualify on first blush, but on closer examination turn out not to meet the legal standard at all.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario2.1

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally (and why such powerful, successful people would jeopardize their marital relationships in this manner), the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on a adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Number 1: 10 Things You Should Know About Child Support1.11.11.1  1.1

1.2Again, this continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody).

Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

There you have it.  Some of our top Blogs for 2013.  Thank you  again to everyone who have visited our Blog and all your continued comments and support and thank you for the honour of a Clawbie Award.

Watch Those Exclamation Marks and All-Caps – The Court Reads Your Emails!

caps

 

Watch Those Exclamation Marks and All-Caps – The Court Reads Your Emails!

As I mentioned in a recent post Texting and Family Law – Top 3 Things to Know , the costs decision in Martin v. Czarniecki saw the court considering the sheer volume of the two parents’ text communications with each other, and concluding that the trial was needlessly lengthened by the cross-examinations that became necessary because of it.

In the trial decision for this same case, the court also examined the couple’s email interactions in an unusually-detailed manner – right down to how many exclamations points were used.

The mother and father had met while on separate holidays in Cuba and as the court put it, “one thing led to another”. They stayed in contact and visited each other over the next three years; the mother learned she was pregnant in 2008. Their son was born in Germany, and the father went there to visit for two months. Eventually the mother moved to Canada with the boy and they got married in 2009.

To make a long story short, the relationship soured in about 2011 and the mother took the boy back to Germany without the father’s consent. Various legal proceedings in both that country and Canada, including a Hague Convention application, followed. The mother was ordered by a German court to return the boy to his father, which she did. They all eventually returned to Canada to continue their legal wrangling over which of them would have custody of the boy, and in which country he would live.

The Ontario court’s decision is long and legally complex; ultimately the court determined the father should have sole custody of the child, and if the mother chose to remain in Canada as well, then she could have access to him on a specified schedule. (If on the other hand she returned to Germany, she would have access on a different schedule, mainly around holidays, that took the long-distance element into account).

But in making this determination the court literally scrutinized of the various emails that went back and forth between the couple, using the information to draw conclusions about each party’s state of mind and ability to parent. About the mother (who was the “applicant”), the court wrote:

An unbiased look at all of the evidence does support [the social worker’s] conclusion that the respondent to this day remains more than a little angry with the applicant. Examples include an email exchange regarding the swimmer’s ear issue.[6] In her email of August 23, 2012, the respondent asks the applicant whether he was mentally ill. Her question is followed by three exclamation marks and nine question marks. In other emails around the same time dealing with the same topic, the respondent resorts to “shouting” and the heavy use of exclamation marks. When the applicant would not provide her with the answers to various questions regarding Max’s schedule, his meals, whom he saw, and other things, she became more and more demanding, and the tone of her emails became more and more angry. A careful reading of those emails readily demonstrates that the respondent was making excessive and unreasonable demands for information. One example was the demand by the respondent for the full legal names and addresses of Sonja (the applicant’s girlfriend) and any other people with whom Max spent time, with whom he talked, or who took care of him. Another was her demand not just to know what Max’s meal schedule was when with the applicant, but the exact contents of every meal.

In another more recent email in late October 2012, concerning Halloween, the respondent wrote “you [the applicant] disgust me”. The respondent has several times said in emails that she does not want the applicant opening his mouth in her direction during access exchanges (meaning not talking to her). At some point, the respondent stopped coming out of her residence for access exchanges so that she did not have to be face-to-face with the applicant. Before that happened, the applicant testified that the respondent would mouth the word “asshole” at him during access exchanges. While one can certainly be sympathetic to the respondent with respect to the applicant’s at times relentless attempts to be cheerful in front of Max and to show Max that his parents can communicate, again the language and tone of her emails show both a profound and continuing anger.

The court had similar observations about some of the communication by the father towards the mother. It summed up the overall situation this way:

Often a multitude of emails passed back and forth. I have examined those emails and reviewed the testimony. I can do no better than repeat what I said out loud in the court room – that all too frequently, neither party appeared ready to budge an inch. While they almost always reached a solution, it took an incredible amount of time and energy to do so.

The tone of this correspondence naturally reflected on the couple’s ability to parent their child in a co-operative manner going-forward. In fact, the court used the emails to conclude (among other things) that: 1) both parties acted unreasonably at times and were all too ready to blame the other for any problems that arose; 2) the mother had intense anger for the father that clouded her judgment; and 2) the father was deliberately pushing the mother to communicate even when she did not want to, but that this provocation was motivated by a genuine to model good communication between parents for their son.

The fact that a court might scrutinize emails this way, to divine a conclusion as to how parenting should be shared, is an important consideration to take into account before you hit “send” on that note to your former spouse or partner.

For the full text of the decision , see:

Martin v. Czarniecki, 2013 ONSC 46  http://canlii.ca/t/fvm3h

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.

Texting and Family Law – Top 3 Things to Know

texting

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.