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
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