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)