A recent Ontario decision serves as a reminder that emails, text messages and other forms of social media can be introduced as evidence in family law proceedings. Judges may consider – and rely on – the content of these communications when determining important matters before them.

What happened?

The parties were married in June 2004, separated but lived under the same roof in October 2010, and physically separated in February 2011. In July 2011, the parties entered into a separation agreement, which provided for shared parenting of their child, who was born in August 2005.

In late 2011, the father was accepted into a program. His job training and work placements led to him being away from where the parties resided throughout 2012 and 2013. During those times, the child was left in the mother’s care. Even when the father returned in late 2013, the parties did not go back to an equal parenting arrangement (i.e., the child continued to live primarily with the mother, while the father saw the child on alternate weekends and one night each week).

In the summer of 2015, the mother began sharing a home with her new partner and his two children from a prior relationship.

Following her move, the mother brought an unsuccessful motion for the child to change schools (to a school in her new area). The judge did, however, order the father to help with driving the child to and from school.

The child was set to start middle school in September 2017. Consequently, the mother again sought an order that the child attend a school that was closer to home. She noted, among other things, that the child’s primary residence was with her, and that the time the child would not be spending commuting could be spent on homework or other activities.  The father disagreed and proposed that the child remain in the school community that he had been in since kindergarten, which was approximately 60 kilometres away, round trip.

The Court’s Decision

The Office of the Children’s Lawyer (OCL) presented the child’s views and preferences and advocated on his behalf at the hearing. According to the OCL, the child had expressed a “strong and consistent” view that he wanted to attend the school of his father’s choice, where most of his friends would be going in the fall. The OCL also advised that the child wanted an equal parental timesharing arrangement, as it was very important to the child that his parents were treated fairly.

The court noted that while the child had a close and loving relationship with both his parents, the evidence was undisputed that he had lived primarily with the mother since 2011 (except for a very brief time following the parties’ separation).

However, the mother raised concerns about inappropriate communications between the father and child. In particular, the mother pointed to a number of email communications in which the father had spoken negatively about her and her partner. For example, in some emails, the father accused the mother’s partner of taking his “father and son time” from him. He had also made similar comments to the child about the mother via text, indicating that she was “robbing” him of his driving time with the child. The mother noted that these kinds of emails and text messages were intended to undermine the child’s relationship with her and her partner.

At the hearing, the father was confronted with his inappropriate communications with the child. In addition to the emails and text messages noted above, the father had inappropriately texted the child while he was at school, distracting the child from his classes, and in some instances voiced complaints about the mother not letting him pick up the child from school. The court concluded that both the timing of those texts and their content were inappropriate.

Another particularly egregious example occurred following a meeting with the OCL in April 2016, when the father called the child on the telephone and told him that he would be attending a school in his old community and that the OCL would support him (when in fact, no decision had been made).

With respect to the telephone call, the judge noted:

I do not accept Father’s explanation that he did not understand what he was doing or appreciate, except in hindsight, that what he did was inappropriate or wrong. [The] Father had been a child protection worker and is an educated and informed person. Given [the] Father’s educational and professional background, it is reasonable to conclude that he knew better than to involve [the child] in these discussions and decisions.

When he was confronted at the hearing with these emails and text messages, the father acknowledged that he had made some mistakes and that he learned his lesson. The court noted, however, that those statements rung hollow. In particular, the court pointed towards a recent email from the father to his family (with a copy to the mother), where he criticized the mother and urged his family to ignore her email about the child’s graduation ceremony. This made it difficult to believe that the father had recognized his mistakes and changed his ways.

The court concluded that in light of the various communications exchanged between the father and child, it was difficult to accept that the child’s views and preferences were not influenced by the father. As a result, the court concluded that the weight that ought to be given the child’s views had to be tempered accordingly.

In the end, the court concluded that the father’s inappropriate communications had undermined his arguments that the existing interim parenting schedule should remain unchanged. The court also took the father’s conduct into consideration in making its decision that it was in the child’s best interests that he attend the school of the mother’s choice.

Lessons Learned

More and more, courts have been considering and relying on the content of emails (and other forms of social media) when deciding family law disputes. It is imperative that parties undergoing separation remain cognizant of the statements they put in writing, especially when communicating with children, as their words may one day be used against them in court.

If you have questions about your rights following a separation or divorce, contact Gelman & Associates. We strive to provide you with the information and resources necessary to make informed decisions about family law matters.

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