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Texting and Divorce: Things to Know About the Law in Ontario

Texting and Divorce: Things to Know

  • Your texts to your spouse can and will end up being shown to a judge
  • Your texts can end up being used as evidence in a trial
  • Large amounts of angry or rude texts require review from your lawyer when they are received and again prior to trial which will increase legal costs – this can also cause additional steps for your lawyer which will further increase your costs
  • Texting can count as harassment or in some extreme situations violence

When can I Text During a Divorce?

  • When discussing child custody and access arrangements
  • To provide or request information from your spouse
  • To discuss resolution of issues resulting from your separation
  • To politely engage in other amicable communication

When can’t I Text During a Divorce?

  • To try to bully your spouse
  • To repeatedly try to convince your spouse of something which you have previously discussed
  • To insult your spouse
  • When your spouse has asked you not to text them or not to text them except for in specific circumstances – especially if this request has been made in writing or through a lawyer

Texts in Court

  • Judges May use texts to determine the parents relationship
  • Judges May use texts to determine the relationship between the parents and the child
  • Judges May use texts to determine the credibility of one parent or the other
  • Judges May use texts to determine the views of a parent on a variety of issues
  • Judges May use texts as evidence of anything discussed in the text

Texting as Harassment

  • Criminal harassment occurs whenever a person causes another person to reasonably, in the circumstances, feel fear for their safety or of anyone known to them
  • Sometimes a court order can include a clause that spouse’s may not harass each other, which will be easier to prove then criminal harassment
  • This type of behavior may include repeatedly communicating with a person or anyone known to that person
  • This means that even repeatedly texting a family member may be considered harassment

Texting as Violence

  • It is very rare for texting to be considered violence against your spouse and has occurred under the law only in very specific circumstances – one such circumstance is when the court is deciding whether to grant exclusive possession of the home
  • The court has decided that for the purposes of the family law act violence can includes acts which are not physical in nature – no direct injury is required
  • The court has said that the type of texting that might be considered violent in the context of family law will be vitriolic, injurious, obnoxious and threatening, it will typically not be provoked by prior behavior

Texting and Kids

  • You can use text messages to communicate with your children when they are not in your custody, but you make sure your texts would not be considered offensive to their other parent
  • Texting when the child is in your spouse’s custody should not be occurring so often as to disrupt their time with the child
  • Under the law a judge can consider texts to a parent or texts to a child when assessing a person’s ability to “act as a parent”
  • When assessing a person’s ability to act as a parent, texting could be considered violence even if it is not physical in nature

Interesting Facts about Texting and Divorce

  • Over 90 Percent of family lawyers report a large increase in the amount of evidence collected from texting over the last three years
  • “Sexting” cannot be used as evidence of adultery in family court
  • If you are jointly responsible for your cell phone bill your spouse may be able to access a record of the people you have texted (and even use your cell phone’s GPS technology to track your whereabouts)

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.

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