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Be Careful with your Phone!

By Marlene Kazman | Garfin Zeidenberg LLP

Marlene Kazman
Marlene Kazman B. SC., LL.B.

There are many court cases where intemperate/nasty/crazy/ill-advised text message and emails are sent between the parents of young children.  I have had the dubious privilege of being counsel on 2 such cases.  The cases are quite different factually, however, a common theme emerges.  

In case #1, both parents sent each other unthinkable messages. They each referenced committing suicide, harming/killing each other, drug use, racial slurs, and insults.  Images of dead and bloodied animals, severed limbs, etc. were sent by the father.  The father was convicted of assaulting the mother and he served a jail sentence.  The mother did not trust the father to parent their 2-year old child, and she kept him away from the child for months on end.  At court, the mother produced an audio tape of the father insulting her, mocking her, calling her “monkey” and threatening her with a power tool while she was 8 months pregnant, and he was assembling a crib for their unborn baby.  He was given supervised access to the child as a “start”. 

In case #2, the mother had too much typing time on her hands.  The father was largely absent. His work took him away from home 66% of the year, up to 3 months at a time.  The mother felt lonely, frustrated, and isolated (she does not drive, she moved to Toronto at his request where she had no friends or family).  She was effectively a single mother. She didn’t sign up for that.  She wanted a family. The father used their home as a drop-in center.  She was hoping to grab his attention by text, but she typed out suicidal ideation and cries for help that looked like she did not want to be a parent.  Nothing could have been father from the truth. The father understood that his wife was exasperated, but when the parties separated, he relied on those text messages to tell the court that she was incapable of parenting their child.  Remember, the mother was effectively the sole parent to the child until separation, but the father manipulated the lay of the land to his advantage … temporarily.  Fortunately, I was able to restore custody and primary residence of the child to the mother.  

What is the lesson to be learned? If you and your spouse separate and cannot agree on parenting issues, someone (i.e. a Judge) will read your intemperate, ill-advised, drunk, rambling, threatening, viscous, frustrated … (fill in the blank) text messages.  The Judge does not know you or your quirky sense of humor.  The Judge may hear evidence about your frustration and the events that led up to that stupid text message.  However, the Judge must apply the law to make decisions. There is some discretion in how the law is applied, but you cannot expect miracles.  Do NOT type a text to your spouse/ex-spouse threatening to kill yourself and expect a Judge to ignore that.  Be sensible. Before you hit “send” read over the message and ask yourself, if I were the Judge, what would I think about this text?   

Contact Marlene Gazman by email at kazman@gzlegal.com  or by phone at 1-416-642-5416.

Practice areas: Family Law

© Marlene Kazman, 2021

This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.


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