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It is increasingly common in family law litigation for text messages to be introduced as evidence. This can happen when two parties have had a relationship breakdown and the conversations have taken a negative tone. In this article Nadine Russell takes a look at the recent Ontario Superior Court decision Menchella v Menchella and how angry texts can have a negative impact on your litigation. In Menchella the court found that text messages can be evidence of violence and this can have a serious impact on a claim for exclusive possession of the matrimonial home and more importantly child custody. In today’s world, where just about everyone has a cell phone (most likely, a “smart” phone), it is very common for people to communicate by text message. Text messages are quick, convenient, and involve less personal contact between the sender and recipient than a traditional phone call. It is probably this last reason that makes text messaging an appealing method of communicating for couples who have experienced a relationship breakdown. However, like any conversation between ex-spouses, there is a chance the discussion can become confrontational and it is important to keep in mind that unlike (most) traditional telephone calls, text messages are recorded.

If you think sending a discourteous text message is probably harmless, think again. In a recent decision of the Superior Court of Justice, Menchella v. Menchella1, the court ruled that the angry and threatening text messages from one former spouse to the other constituted “violence” within the meaning of section 24(3) of the Family Law Act2. Section 24(3) of the Family Law Act lists certain criteria that the court is required to consider when deciding whether to award exclusive possession of the matrimonial home to one spouse, one of which is “any violence committed by a spouse against the other spouse or the children. The term “violence” also appears in section 24(4) the Children’s Law Reform Act3 when referring to the criteria a court is required to consider when assessing a person’s ability to “act as a parent”, so it is likely that a threatening text message could be considered “violence” in this context as well.

While the reasoning in Manchella may not apply to every particular case, this case is a great illustration of how persuasive text messages can be in demonstrating to the court how a party is behaving outside of court, which can extend further than just exclusive possession of the matrimonial home, especially in custody and access cases. I usually tell my clients to keep the following points in mind when communicating with an ex-spouse in writing, whether it be via text message or e-mail:

1.  Always be polite. In the heat of the moment, it may be tempting to write something nasty to your ex, but trust me – it isn’t worth it. In particular, if there are custody or access issues in dispute, such as a claim for joint custody, you do not want to say anything that could cause you to be perceived by the court as unable to communicate with your former spouse which will lead the other party to claim you can’t get along and strengthen their position for custody.

2.  Assume a judge will be reading your text messages. As a family lawyer, I have attached text messages to Affidavits and I have seen my clients’ text messages attached to other parties’ Affidavits. A text message can add a sense of “believability” to the message you are trying to convey to a judge and, as demonstrated in the Manchella decision, this can be persuasive to the court. I once heard a judge comment about how inflexible a mother was being about access, saying he knew this because he had “read the text messages”.

If you are involved in litigation, or may become involved in litigation, keep in mind the wise words your mother probably said to you as a child: If you don’t have anything nice to say, don’t say anything at all –  Especially not in a text message.

Nadine Russell was called to the Bar in 2011 and is currently an associate lawyer in the Siskinds Family Law Group. Nadine’s practice encompasses all areas of family law including property division, support issues, custody and access, as well as preparing asset protection agreements and separation agreements.  If you have support issues or any issue related to family law, please contact Nadine Russell at [email protected] for a consultation.

1 Menchella v Menchella, 2013 ONCSC 367

2 Family Law Act, RSO 1990, c F.3, s 24(3)

3 Children’s Law Reform Act, RSO 1990, c C.12, s 24(4)

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