The question for the court in an interesting case called Menchella v. Menchella was whether one spouse’s text messages can amount to “violence” against the other, for the purposes of determining which of them should have exclusive possession of the matrimonial home after they separate.
The father and mother separated after 15 years of marriage. They had one child together, who was 12 years old. However, after they separated the father continued to live in the former matrimonial home (which was solely owned by the mother) while they untangled their financial affairs. The mother also lived there with the child, and had been unsuccessful on an earlier attempt to get an order for exclusive possession and have the father ousted.
She came back to court a second time to try for the same order. This time, she added a new ground: she claimed that the father’s abusive texts to her had amounted to “violence” which – under s. 24(3) of the Family Law Act – was one of the specific factors that a court consider in granting an order for exclusive possession in her favour.
The court began by observing that for the purpose of Family Law Act considerations, violence need not be physical:
Violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis.
Violence as constructed within Section 24(3) (f) of the Family Law Act [which allows a court to order exclusive possession of a matrimonial home] does not require direct physical injury.
With this in mind, the court illustrated the nature of some of the text exchanges instigated by the father to the mother in this case:
Almost four hours later, the father sent an extraordinary long text to the mother in which she is very personally attacked, her friends are vilified and her counsel is mocked. The communication is obnoxious and threatening. It is wholly non-responsive to the question of caring for his daughter over the thanksgiving weekend. It was not provoked.
His texts continue on the next day, Saturday September 29th, take a break and then start again October 5th, a full week later. The father states that the mother is to “enjoy her ride…there’s a time for everything…and you have hurt me so much that your time…here God will have His reckoning day with you. Later on in the same communication he states that, “I will NEVER forgive what you have done to Alexia! Know this, I am witness to this…and your day is coming soon…that you will regret everything you did to us.”
The court found that the father’s vitriolic texts clearly met the threshold for violence for the purposes of the Family Law Act section authorizing a grant of exclusive possession. The texts had been sent to the mother over the course of a full week, were threatening and intimidating, and were not proportional to the situation. A reasonable person would have found them to be injurious. Moreover, they were potentially harmful to the child. The court wrote:
It is of critical importance that [the daughter] not be exposed to adult conflict. There has been violence between the parents in the form of text communications from the father to the mother. The relationship dynamic now evidenced in those texts suggests that [the daughter] is at risk. In my view, the text messages clearly preclude any prospective potential that the father can live “quietly and discretely” in the mother’s home.
The mother was therefore awarded exclusive possession.
For the full text of the decision, see:
Menchella v. Menchella, 2012 ONSC 6304 http://canlii.ca/t/ftmth