Electronic communications, whether via email, text, or social media, have become a regular part of life for most people. However, most people do not take the time to reflect on what impact their online and electronic activities may have on significant parts of their life, including potential family law disputes.

A decision by an Ontario court outlines how e-mails can negatively affect a childcare dispute between divorced parents, in this case leading to a finding of contempt.

What Happened?      

The parties at issue were divorced parents who were in the midst of a “high conflict” dispute over parenting of their children. The parties had previously taken part in a mediation-arbitration to resolve outstanding matters with respect to their children. The mediation-arbitration lasted five days, ending in an arbitration award issued in 2008 (the Award).

In the Award, the Arbitrator made it clear that both parents had been jointly responsible for exposing the children to disputes and involving them in ongoing issues as between the parents. The Award contained eleven pages of very specific logistics including scheduling during and outside of the school year, and covered every conceivable scenario and occasion. Decision making protocols were also outlined.

The Award also covered how the parents were to communicate, both with one another and with the children when the children were in the care of the other parent. Additionally, an overarching set of “parenting principles” was outlined, intended to ensure that the parties dealt with one another with “uninterrupted respect” and without involving either child in ongoing conflict.

The Award was ultimately confirmed by Court Order, with the consent of both parties (the Court Order).

Despite the detailed Award, disharmony between the parties continued, with the children stuck in the middle of the warring parents. The mother eventually sought an order finding the father in contempt of the Court Order.

“Denigrating and Critical” Emails

The mother claimed, among other things, that the father had sent email communications to her and the children which violated the parenting principles as outlined in the Award. Specifically, the emails he sent were “denigrating and critical”, and those that included the children placed them in a position where they would be looped into the parents’ “frequent” disputes over scheduling, expenses, and extra-curricular activities.

In support of her position, the mother filed more than 400 pages of selected emails that had been sent between the parties since the Award was issued in 2008. She argued that the father had “flouted” the terms of the Award by “undermining” the provisions that mandated tolerance, cooperation, and restraint. The mother further argued that instead of encouraging predictability and structure, as envisioned by the Award, the father’s actions instead resulted in tension and uncertainty.

In response, the father claimed that the mother’s contempt motion had been brought as a reaction to the children expressing a desire to have their schedule amended so that they could alternate between parents on a weekly basis.

Contempt

A finding of contempt is only justified where the court is satisfied, beyond a reasonable doubt, that:

  • the order at issue clearly and unequivocally states what is or is not to be done;
  • the party responding to the contempt motion is provided with sufficient details of their allegedly contemptuous behavior to understand the case that must be met; and
  • the order was, in fact, disobeyed willfully and deliberately.

In this case, the court found that the terms of the Court Order were clear and unambiguous. The Court Order recognized the terms of an Award that set out relevant parenting principles, including that the parents should not “denigrate, criticize or disparage the other parent…in any communication with the children”, that the “parents shall not use the children to pass information from parent to parent”, and that the “parents shall not discuss adult issues with the children” including “specific parental differences and disagreements”. The court noted that these principles essentially “set forth a code of conduct” that each parent was expected to comply with.

The court further found that the father had received adequate notice of the particulars (i.e. details) of his alleged breach, and that he had breached the order on a number of occasions.

Specific Examples of the Breach of Court Order

The court outlined specific examples where the father had either denigrated, criticized or disparaged the mother in communications with the children or spoken to them about disagreements with the mother, in direct contravention of the Court Order including:

  • The father had sent the younger son an email, forwarding a message from the mother and commenting “colourfully and inappropriately” about it;
  • The father had BCC-ed the younger son on a tension filled email to the mother, calling her “paranoid as usual”;
  • The father had forwarded the older son an email exchange between the father and the mother which had discussed whose responsibility it would be to pay for a skateboarding camp;
  • On several occasions, the father forwarded one or both sons parental email exchanges which addressed scheduling, extra-curricular activities, and general compliance with the Court Order;
  • The father sent Blackberry messages and emails to the sons telling them things like “just don’t let [the older son] get saddled with ur (sic) mother alone”, and imploring them, repeatedly, to “work on” the mother “hard” until she agreed to pay school fees because the father had previously paid them on his own.

The court noted that the Arbitrator who had issued the Award found that each parent had much to offer their children, but that they were ultimately “high conflict parents who do not agree on many things”, and that:

The [A]ward is intended to minimize conflict, to regulate communication, minimize the number of transfers and create a situation where there is less opportunity for conflict.

While the father attempted to defend his conduct, the court ultimately found that the father had ridiculed the mother, and ignored her views that it was inappropriate to include the boys in their email exchanges. In addition, the court found that several of the father’s emails were “entirely offensive”, that his descriptions of the mother were “unnecessary and insulting”, and that, in addition to sharing negative views of the mother, he also pushed the idea that time spent with her was something to be “endured not enjoyed”.

The court concluded that the father had regressed from his previously commendable behavior (as had been noted by the Arbitrator), and had allowed his feelings about the mother and the parenting arrangements to govern his conduct.

Ultimately, the father was found to be in contempt of the Court Order.

Lessons Learned

This case establishes how easy it can be to have your online behavior affect a family law dispute, particularly one which involves children, and how electronic communications can potentially lead to a finding of contempt. Parents in the midst of a separation or divorce should avoid speaking negatively about one another, particularly via text, email, or other electronic communication, and especially where children are copied on the communications.

Here, the court did note that:

Contempt of Court is the big stick of civil litigation.  It should be used sparingly and only in the most clear cut of cases.  There are other procedures available to enforce orders; other than a contempt motion.  To use contempt motions to enforce minor but annoying breaches of a Code of Conduct, takes away and waters-down the effectiveness of the contempt procedure.  Contempt should be reserved for those serious breaches, which justify serious consequences.

However, in this case, the father exercised poor judgment, deliberately escalated tensions, and continually communicated with his children about matters that had expressly been deemed inappropriate. Collectively, these actions led to a finding of contempt.

The key lesson for separated or divorced parents is: do not say anything in a text, email, or other form of messaging that you would later be embarrassed to have read out loud, on the record, in a court room.

At Gelman & Associates we have been helping clients navigate separation, divorce, and related issues such as child custody disputes for many years. Contact us to learn how our experienced family lawyers can help facilitate a resolution of your family law matter. We have six offices and serve clients in Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.