Law Times

Page 12 February 11, 2013 Law Times • FOCUS Menchella v. Menchella Case considers angry text messages, e-mail as violence BY JuDY VAN RHIJN For Law Times W hen spouses use e-mail, text messaging, and other electronic forms of communication to intimidate their partners, the courts will now label it a form of non-physical violence. In one case, it provided the grounds for an order for exclusive possession of the family home. As a result, lawyers see other applications for this easily accessible evidence. In a Nov. 6 ruling in Menchella v. Menchella, the Superior Court of Justice considered two issues. First, can text messages received by a spouse constitute violence pursuant to s. 24(3)(f) of the Family Law Act to justify an order for exclusive possession? Second, can text messages between spouses affect the best interests of a child in a manner that supports an order for exclusive possession? In her analysis, Justice Heather McGee wrote: "Violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis." In addition, the court specifically stated that direct physical injury isn't required. McGee referred to the 2008 case of Kutlesa v. Kutlesa in which text messages were part of a series of acts the court found to constitute violence by a spouse who had already left the matrimonial home. In Menchella, the husband was still residing in one part of the home and his proximity to the wife magnified the effect of the texts. McGee found the "vitriolic communications" not only made it impractical for the parties to continue to share the home, they send button that a also gave evidence judge is likely to read of a relationship dyit, whereas if they're namic that suggested face to face they're the child living there thinking, 'Who can was at risk. prove it?' You can "I will have no meronly imagine what cy on you this time! the balance of their Can't wait for court communication is this time! It's going to like if they are saying be fun making you Andrew Feldstein this online." crumble for everyone According to the Superior you have hurt! You are pathetic and everyone here is disgusted in Court, determining non-physiyou as a mother!" McGee's ruling cal violence involves an inquiry quoted the husband as writing in into the purpose of the relevant words. In this case, McGee a text message. Andrew Feldstein of the found the words were "threatenFeldstein Family Law Group in ing, intimidating, and were inMarkham, Ont., says it's not new tended to be taken seriously." "A reasonable person could not for parties to use e-mails and texts as evidence. But what has changed view the father's texts as either jestis their use, on their own, to make ful or ambivalent," she noted. Steven Benmor of Benmor an order for exclusive possession. Feldstein is surprised it didn't hap- Family Law Group in Toronto pen sooner. "To me, it shows an points out that it takes more guts abundance of common sense. to say something face to face People know when they push the than in electronic form and those Sure, we could tell you that our client was awarded the largest personal injury judgment in Canadian history and that all our principal partners are past-presidents of the Ontario Trial Lawyers Association. We could also mention that our firm was voted top five in its field in Canada and that we have a five out of five preeminent peer review rating from Martindale-Hubbell. All those achievements and honours don't just happen. They're the result of the way we work and the way we care for our clients. Don't take our word for it... ask around. When you know someone with a personal injury case, call the lawyers that lawyers recommend most. Ask about our competitive referral fees. ™ A Noticeable Difference TORONTO I BARRIE I HAMILTON I 1-866-685-3311 I www.mcleishorlando.com Untitled-5 1 www.lawtimesnews.com 13-02-06 1:45 PM "easier" types of communication are on the rise. "These days, we spend more time communicating by e-mail than face to face. For every minute you spend speaking to someone's eyes, you spend 10 minutes on electronic communications. There are a vast number of communications and there are increasing avenues to communicate." Benmor lists e-mail, text, Facebook, Twitter, and LinkedIn as some of the methods. "In some cases, it's one-on-one; in other cases, one on a million. As society uses more electronic means, there is a higher likelihood of misguided and reckless and potentially criminal acts that will form the grounds of court and police actions." To find all the potential uses in family law, Benmor says the answer is in the legislation. "The Family Law Act and The Children's Law Reform Act are different to the Criminal Code. They provide that you can get a restraining order because you are fearful. It doesn't say the fear has to come from a physical act or telephone call. That's been around for over 20 years. Justice McGee applied the test for exclusive possession and found that e-mails constitute harassment sufficient to prove the sender is a threat, so exclusive possession is now a possible byproduct." Benmor believes electronic evidence would be even easier to use for a restraining order and Feldstein sees many other applications. "I would use it in any form you could in family law, including proof of income or assets, as long as the evidence is admissible," he says. In Menchella, in fact, the judge said the messages were a rich resource for clearing up discrepancies in other evidence. Given the uncertainty around some privacy rights online, Feldstein warns that the main concern regarding admissibility is how someone obtained the evidence. "If someone puts comments against their own interest on Facebook, the question is how did your client get a copy of that? Did one of the spouse's friends forward it on? If they did, it's OK. But if they have surreptitiously taken their spouse's password, then you get into the tort of invasion of privacy." He suggests clients think of how many friends they have. "If they have one or two thousand friends, then it is easy for someone to get a copy of it. Even five or 10 friends may be too many." As a result, family lawyers are increasingly trying to educate their clients on the risks of social media. "I always tell my clients to think before they push the send button," says Feldstein. "They should assume that a judge is going to read everything. Some people can't help themselves, but we must work to prevent them from pushing that dangerous button." LT

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