Email at Your Peril

The breakdown of a marriage is a very stressful time. It is not unusual to be angry and it is not unusual to vent that anger.

Before this technological age, we had to actually face each other to vent anger but now with email, Facebook, Twitter, text messaging and all the other instant messaging available to us, we can vent to our hearts’ content and never actually see the impact of our communication.

As a family law lawyer, I have seen some very hurtful, mean and threatening instant communications as well as email harassment by a constant, endless barrage of instant communication.

As most people know by now, family law in British Columbia is going to change significantly in the middle of March 2013 when the existing Family Relations Act is replaced by the new Family Law Act.

The Family Law Act specifically addresses family violence. “Family violence” is broadly defined in s. 1 of the Family Law Act as including:

(1)          physical, sexual, psychological, and emotional abuse;

(2)          intimidation, harassment, threats, and stalking;

(3)          restricting a person’s autonomy and withholding the necessities of life;

(4)          damaging property; and

(5)          in the case of children, direct or or indirect exposure to family violence.

There are provisions for protection orders against family violence and those too, are broadly defined (see s. 183) and there are specific factors which the court must consider in assessing family violence.

Family violence impacts many areas of family law including custody and use and possession of the family home. S. 37  of the Family Law Act adopts the former standard of the best interests of the children as the underlying principle for all decision making relating to children. S. 37(2) sets out that in determining what is in a child’s best interests the court must consider a number of factors including:

(g)          the impact of any family violence on the child’s safety, security or well-being whether the family violence is directed toward the child or another family member;

(h)          whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs…

With the change in the legislation, lawyers and judges are going to be looking to other jurisdictions for precedent to help interpret the new Family Law Act.  And no doubt, we will be looking to Ontario which has had a similar statute in place for many years.  Courts may well consider emails to fall within the definition of “family violence”.

I recently read this article in the Law Times which refers to cases in which Ontario courts have considered emails to fall within the definition of “family violence”. The article is worth reading before you decide to hit the “send” button.

So beware.  Watch what you say, what the language you use to say it, and watch your tone. To indiscriminately email, text, and/or Facebook means you risk losing occupation of your home, face protection orders or perhaps even the loss of your children.

 

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