by Jason Murphy | Apr 23, 2013

By now, we’ve all seen graphic ads warning us about the dangers of texting while driving.

But recent cases show that thoughtless texting with your ex can also wreck your family law case and even earn you a criminal record.

In Menchella v. Menchella, the Court ordered a husband to vacate the matrimonial home and granted the wife exclusive possession of it after a series of text messages from the husband where he called the wife “pathetic” and said such things as “God will have His reckoning day with you” and “your day is coming soon”.

In granting the wife possession, Justice McGee noted that “violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis.”

Her Honour found that the husband’s texts were “violence” as intended within the Family Law Act. They were “threatening, intimidating and were intended to be taken seriously.” In those circumstances, it was not feasible for the husband to continue to share a home with his wife and 12 year old daughter during the matrimonial law suit.

In the case of R. v. Hildebrandt, a father was convicted of criminal harassment of the mother of his child after sending her “numerous and continual” texts, e-mails and phone messages over the course of three months.

The father argued unsuccessfully that the purpose of the communications was to attempt to re-establish a role in the life of his child after the expiry of a restraining order which had barred the father from contacting the child’s mother.  The judge found that the father’s conduct was intended to intimidate and harass the mother and handed down a suspended sentence and three year’s probation.

Courts in these cases will focus on whether the text puts the recipient in fear of the sender’s behaviour. If the text produces such fear and anxiety, the court will treat it as seriously as it would a physical blow.

Texting is a fact of modern life. But the next time you’re tempted to text a nasty note, joke or remark to your ex, your child or your lawyer, ask yourself these three questions that might save you a lot of grief:

1. Does the recipient want to hear from you? If someone has explicitly told you to stop texting them, you are taking an obvious risk in not listening. No means no. But if the recipient is simply not responding to your texts, consider whether this might also be due to them not wanting to hear from you. If so, take the hint. More is not better. Twenty unanswered texts to someone over a weekend can sound like a lot to a judge.

2.  How would this message look to a complete stranger? A police officer, a lawyer or a judge reviewing your messages won’t know your relationship history, your sense of humour or your side of the story. They will simply be trying to determine whether your words could make the recipient fear your behaviour. “U’ll regret this” or “LOL idiot” may sound harmless to you, but will sound a lot different when read aloud in a court room.

3.  Do you have to send this text right away? Most “problem texts” would never get sent if people simply took a moment to really think about what they were saying. So before you press send on your next witty slam, save it to draft and walk away for a few minutes. Chances are, when you review it, you will change it in a way that makes you come across in a more rational way.

If in doubt, don’t send it out.