Family Law: Couple’s battle shows dangers of text messages

A notable court decision this summer provides a good example of how electronic communications by parents in the age of text messaging can fuel the high-conflict fires that we as lawyers need to be ever mindful of.

The case, Dephoure v. Dephoure, also demonstrates solid judicial consideration of the realities facing children in high-conflict parenting cases as well as contempt issues.

According to the ruling of Superior Court Justice Gordon Lemon, the parties had joint custody of their five-year-old daughter who resided primarily with Tracey-Lynn Dephoure. Wayne Dephoure had generous access, however.

As is so often the case, the catalyst for renewed conflict was a new love interest entering the picture of one household. In this case, Wayne began seeing a new woman, a situation Tracey-Lynn wasn’t happy about.

As a result, she began what appears to have been a text-messaging campaign against Wayne and his choice of partners.

Tracey-Lynn warned her ex-husband that their daughter wasn’t to spend time with his new girlfriend until the relationship was a “solid” one.

More seriously, however, she withheld his access to their daughter on several occasions, including by phone, over claims that it was necessary to protect the child from this new and uncommitted relationship. As a result, he brought a contempt motion against her.

In response, Tracey-Lynn brought her own motion seeking a finding of contempt and a change of custody in her favour. Alleging he had breached the original court order himself, she also wanted a change in the access schedule and various other restrictions against Wayne.

Lemon was quick to note that Tracey-Lynn hadn’t proven her allegations. Moreover, she admitted to intentionally withholding the child. For its part, the court completely discounted her excuse of trying to protect the daughter from exposure to Wayne’s new girlfriend.

There was nothing in her evidence to suggest that the girlfriend was a bad woman or influence or somehow an otherwise inappropriate person to expose the child to.

It’s not clear from the decision whether there was any credence to the allegations against Wayne. What’s certain, however, is that the text messages to him about his new girlfriend were the catalyst for the contempt finding.

Lemon notes that the record contained the messages, which he described as “disgusting and vile.” The decision reproduced only a few bits.

What these messages did, as is apparent from the reasons, was to completely discount Tracey-Lynn’s credibility on the real reason behind her decision to withhold access on three occasions.

Lemon held that her concerns weren’t about the length of the relationship with the new girlfriend; rather, she simply didn’t like her.

In concluding that Tracey-Lynn was in contempt, Lemon gave her three months within which she could purge the finding rather than subjecting her to any form of penalty for it. He put very strict conditions on communication and access, including makeup provisions for Wayne.

The judge further dismissed Tracey-Lynn’s motions and cautioned her that if her behaviour continued, the court may very well change custody in her ex-husband’s favour. The matter was to come back before Lemon in three months’ time for a final determination.

The decision is encouraging as a form of high-conflict management by the judiciary, especially as an order to pay a fine or costs or even of imprisonment would certainly do little to de-escalate the problems or have any beneficial impact on the child.

What this case further exemplifies is that in the age of the Internet and instant reply in written form by text or e-mail, we need to spend a great deal more time in managing our clients’ communications.

I often hear from clients that text messaging is just one of those things that you do instantly without thinking it through too much.

At least with e-mail, people generally seem to re-read a message before hitting send. It seems much less so with text messages. And every day, they become easier to download and keep as evidence for the future.

Gone are the days of being able to have an argument and then have it disappear into the air. It’s far too easy for all of those things said in the heat of the moment to solidify into evidence because texting is becoming a much more prevalent mode of communication.

Marta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O’Brien Payne LLP in Ottawa. She can be reached at [email protected].

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