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  • Texting as Evidence

    Texting and Family Law

    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.
    Here are the top three things you need to know about text messages under Ontario law:
    1. Your texts can tell a judge a lot about you.
    In a case called Williamson v. Massinger, the court scrutinized a series of text messages between the separated parents, and found them very helpful in fully understanding the dynamics of the relationship between them. For example, the court was able to rule on the mother’s lack of credibility, based on inconsistencies in her text messages about matters such as her lingering feelings for the father, and her view of his parenting. Other texts demonstrated the mother’s manipulative nature: one of them included a threat – which later materialized – that the father would no longer get to see his child until a court order was in place.
    2. Texting your spouse can constitute “violence”.
    Abusive text messages can sometimes amount to “violence” by one spouse against the other in certain Family Law contexts. For example, in a case called Menchella v. Menchella, the husband’s texts to the wife were found to have met the definition of “violence” under the provisions of the Family Law Act, which finding allowed a court to order that the wife should get exclusive possession of the matrimonial home pending trial. (And that finding was later upheld on the husband’s motion for leave to appeal).
    3. Texts can become evidence, and that can run up your court costs.
    The exchange of text messages between spouses can become evidence for a later trial, in the same way emails, phone calls, faxes and other similar communications do. But the problem with texts is that they can be quickly (and one might say, indiscriminately) sent, and can quickly tally in the hundreds. This was precisely the case in Martin v. Czarniecki, where the court lamented the fact that “the trial was unnecessarily lengthened by the exhaustive cross-examination of the applicant on the hundreds of emails and text messages” that “achieved little to advance the case or help me to determine the best interests’ of the child…”
    For the full-text of the decisions, see:
    Williamson v. Massinger, 2011 ONSC 7733 (CanLII) http://canlii.ca/t/fpgs6
    Menchella v. Menchella (2013), 2013 ONSC 965; refusing leave to appeal 2012 ONSC 6304 http://canlii.ca/t/fwl9n , http://canlii.ca/t/ftmth
    Martin v. Czarniecki, 2013 ONSC 2029 (CanLII) http://canlii.ca/t/fx04f

  • #2
    I agree that text message history can definitely illustrate patterns of behaviors (Type A vs. Type B, etc). Words can tell a great story. I feel like people text more than they even speak now-a-days. Some issues may be that "tone" can't be interpreted via text. Some couples may communicate in a certain manner at home, i.e - "You stupid jerk"(with a big smile on her face while kissing him). The "You stupid jerk" is a playful thing to them. If they text that the judge is concerned. Also, just as recordings can be highly manipulated I feel like texts can be moreso. While building a case one party can pose leading questions, indirectly or directly taunt, and if they have access to the phone (as occurred in my case), create texts and send them to their phone, delete texts that they don't want people in the future to see on your phone, etc. By the time they've left they've created a "perfect storm" of texts to end you in court. I feel like judges need to be very weary before deciding fates before relying on material that's so susceptible to manipulation.
    Last edited by LovingFather32; 05-28-2014, 10:01 PM.

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    • #3
      Please refrain from cutting and pasting entire posts from a blog, particularly without giving credit to your source. Kindly amend this and the other, to give appropriate credit and consider linking instead of copying in its entirety.
      Start a discussion, not a fire. Post with kindness.

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      • #4
        It's a summary from a lawyer blog on caselaw in the public domain, I'll try to delete it. If you have the power please delete along with Facebook as Evidence and I'll just post the case law in a new post TY
        Last edited by MrToronto; 05-29-2014, 08:07 AM.

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        • #5
          Texting as Evidence

          Don't delete it. Very good read. Delete the content if you need to but please provide a link. This is very useful.


          Sent from my iPhone using Tapatalk

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          • #6
            If " by Russell Alexander" can be edited as the source with the link below:

            Be Careful About Who Your ?Friends? Are | Familyllb's Blog

            Comment

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