COURT FILE NO.: FC-11-039619-00
DATE: 20121106
SUPERIOR COURT OF JUSTICE – ONTARIO - FAMILY COURT
RE: Gina Menchella, Applicant
AND:
Anthony Menchella, Respondent
BEFORE: The Honourable Madam Justice H. McGee
COUNSEL: H. Niman, for the Applicant
G. Joseph, K. Maurina appearing for the Respondent
HEARD: October 17, 2012
ENDORSEMENT
Primary Issue
[1] Can text messages received by a spouse constitute violence pursuant to Section 24(3)(f) of the Family Law Act? Alternatively, can interspousal text messages affect the best interest of a child in a manner that supports an order for exclusive possession?
Background
[2] In reasons released March 21, 2012, I declined to award the applicant mother exclusive possession of the matrimonial home, confirmed the consent of the parties that their 12 year old daughter would continue to live primarily with the mother in the home, requested the assistance of the Children’s Lawyer, and set temporary amounts for child and spousal support payable by the respondent. Each party was free to bring a motion for disclosure on twenty days notice.
[3] A subsequent motion dated June 28, 2012 (amended July 12), was set for hearing on August 1, 2012. In this motion, the mother sought orders:
a) Striking the father’s pleadings by reason of his ongoing failure to comply with the order of March 21, 2012;
b) Granting the mother exclusive possession;
c) Requiring the father to vacate the home within 15 days, and
d) Costs partially enforced pursuant to Section 1(1) (g) of the FRSAEA.
[4] The parties entered into a consent on August 1, 2012 to adjourn the motion to October 17, 2012, on terms that:
a) the father would direct Re/Max, or any other broker from whom he receives commission to pay no less than 50% of the gross commissions payable to the Applicant after the desk fee – with notice to the FRO.
b) Re/Max would provide the mother’s lawyer with all requested disclosure concerning the father’s 2012 commission to October 17, 2012, including financial arrangements for the payment of his expenses and whether there have been, or are any listings in the names of other agents, if the father is an agent for a purchaser, and any other requested disclosure.
c) The parties were to attend for questioning.
d) Costs were reserved to the justice hearing the motion.
[5] In support of the motion, the mother served an affidavit, the Friday before the Wednesday motion. At the Wednesday hearing the father’s counsel sought an adjournment to permit time for a reply. Counsel for the Office of the Children’s Lawyer was present.
[6] The request for an adjournment was denied, as certain relief sought concerned the immediate interests of the parties’ daughter. More specifically, the court was concerned with the potential for ongoing exposure to adult conflict.
[7] This priority concerns was made known to the parties. I allowed the father to file his typed affidavit sworn October 17th that had been served that morning. I permitted the parties to each serve and file a further affidavit on the specific interests of their daughter.
[8] The motion primarily proceeded on the mother’s claim for exclusive possession. Mother’s counsel closed with a submission that the father’s pleadings be struck in the event of ongoing non-compliance with the August 1, 2012 terms for disclosure.
The Law
[9] Section 24(3) sets out the criteria for an order for exclusive possession:
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, c. F.3, s. 24(3).
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c. F.3, s. 24(4).
[10] Violence through words and deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis.
[11] Violence as constructed within Section 24(3) (f) of the Family Law Act does not require direct physical injury. I adopt the analysis of Fitzgerald J. in Hill v. Hill (1987) 1987 8348 (ON SC), 10 R.F.L. (3rd) 225, in which he concludes that the Family Law Act is a remedial stature that can be liberally construed to include within its meaning, an injury achieved by words and deeds:
In my view the violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. Violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behavior and impinges on her mental and physical health, violence has been done to her equilibrium as surely as if she had been struck by a physical blow.
[12] The Court must weigh whether the relevant words were intended between the parties to intimidate, or to be taken seriously. In the absence of a clear meaning between the parties, the court can consider whether a reasonable person would find the words injurious, or alternatively, might view the communication as exchanged in jest, or ambivalence.
[13] Such a conclusion was ultimately reached in Williamson v. Massiger 2011 ONSC 7733. The court relied heavily on an exchange of text messages in respect of a particular incident of conflict in its analysis of the relationship between the parties and their capacity for cooperation. The court found a review of the text message exchanges relating to the incident to be “very helpful” in understanding the dynamics of the relationship between the parties:
[14] Thus the timing and circumstances of the communications is critical. In Kutlesa v Kutlesa 2008 CarswellOnt 1657 (Ont. S.C.), Pazaratz J. considered a motion by the wife for temporary exclusive possession of matrimonial home. The court considered a number of text messages sent by the husband to the wife. Among other things, the husband, via text, threatened to quit working because the wife was “so greedy”, told the wife that the creditors were going to take half of the house from her, and told her that “you and everyone like you sucked the life out of me, pushed way too far now you will see.” The husband took further actions such as breaking into the house, leaving a note and cancelling insurance policies.
[15] Although the husband stated that the text messages were innocent, Justice Pazarata determined otherwise:
The "violence" referred to in section 24(3)(f) must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.
[16] The court then granted the wife exclusive possession of the matrimonial home based on the factors listed in s.24(3). The court clearly considered the Husband’s non-physical acts, including the text messages, to constitute violence within the meaning of s.24(3)(f). However, in those circumstances the text messages were only part of a series of acts the court found to constitute violence.
Evidence and Analysis
[17] On October 10, 2011, the parties ended their spousal relationship of 15 years. The father is at this time a 53 year old realtor who continues to reside in the matrimonial home. Title to the home is held solely by the mother. She is 50 years of age and has not worked outside the home since the parties married. It is agreed that their 12 year old daughter shall continue to be primarily resident in the matrimonial home with her mother. A marriage contract excludes the home as a family asset on marriage breakdown and releases any claims of trust. The father seeks to set aside the contract and asserts a trust interest in the property.
[18] In my reasons released March 21, 2012 I concluded that the mother had not met the statutory test for an order for exclusive possession of the home. In my reasons, I noted that the father had taken no steps to delay the disclosure process and that he proposed to live quietly and discretely within 500 square feet of their 6,000 square foot home. Most importantly I gave weight to his concern that his relationship with his daughter was at risk were he to vacate the home. He purported to seek an order for joint custody and cooperative parenting.
[19] The mother now renews her motion. She provides compelling evidence that the father has delayed in providing disclosure and that he is insincere in his parenting claims. The mother attaches a series of text messages to demonstrate both the nature of the spousal relationship and the father’s view of joint parenting.
[20] The parties agree that their daughter has not been directly exposed to any text messages between them, and they each acknowledge that there has never been any physical violence between them.
[21] The relevant thread of text messages begins with that of the mother on September 28, 2012, at 1:03 p.m. She had decided to visit her mother who resides out of province over the Thanksgiving long weekend. The communication exchange followed. Some spelling has been normalized to ease reading:
Applicant Mother: Re: Alexia, just to let you know I will not be here next weekend. I am leaving Oct 4 which is Thursday and coming back on Monday the 8th. It is thanksgiving and I know she will be with you and the kids.[^1]
She has no where she has to go, but just to make sure she is fed and not home alone past 10:00.
Respondent Father: Lol…you’re pathetic! Send me notification through lawyer I DON’T want any contact with YOU on any level!
I am away as well!
Applicant Mother: It is your responsibility to have her every other weekend, because you want joint custody. Daniel said he was having thanksgiving at his house. If you do not want to be with her I will make other arrangements.
Respondent Father: I DON’T want you to contact me! You have never before regarding don’t start now because it’s convenient for you! Erase me from your memory! I don’t ever want you around me or my kids or family again!
Anything to do with my daughter through the lawyer
I don’t want anything, ever at all, with you! Stay out of my life!!!
Applicant Mother: So you want to have the lawyer contact you in regards to watching your daughter?
Respondent Father: Erase my number!
[22] Almost four hours later, the father sent an extraordinary long text to the mother in which she is very personally attacked, her friends are vilified and her counsel is mocked. The communication is obnoxious and threatening.[^2] It is wholly non-responsive to the question of caring for his daughter over the thanksgiving weekend. It was not provoked.
[23] His texts continue on the next day, Saturday September 29th, take a break and then start again October 5th, a full week later. The father states that the mother is to “enjoy her ride…there’s a time for everything…and you have hurt me so much that your time…here God will have His reckoning day with you. Later on in the same communication he states that, “I will NEVER forgive what you have done to Alexia! Know this, I am witness to this…and your day is coming soon…that you will regret everything you did to us.”
[24] The mother replies on October 5th at 2:12:
Applicant Mother: Why can’t you be a father? Everyone thinks your pathetic, you haven’t watched your daughter ever
And then the father immediately retorts:
Respondent Father: Lol…you don’t work…and you fuck off to meet your boyfriend…and you dump your daughter on everyone else! Pathetic???? You should hear what everyone is saying how disgusting you are! You have been and are a pathetic drunk and drug user of a mother. I will have no mercy on you this time! Can’t wait for court this time! It’s going to be fun making you crumble for everyone you have hurt!
You are pathetic and everyone here is disgusted in you as a mother!
You even abused the cat!
The text continues on in the same insulting manner despite the mother making no response. It concludes at 2:24 p.m.
Respondent Father: You don’t deserve to have Alexia
I will do everything into power to take her away from you legally! You are so sick!
[25] At the hearing of the motion on October 17, 2012, father’s counsel bravely submits that the respondent was uncharacteristically ill-tempered during these exchanges, and of course, that it will not happen again. The father did after all, ultimately spend thanksgiving with his daughter.
[26] Mother’s counsel describes his client as being in a state of constant anxiety, never certain when she will next be a target for the father’s rage.
[27] There can be no doubt that the vitriolic communications constitute “violence” as intended within Section 24(3) (f) of the Family Law Act. They are threatening, intimidating and were intended to be taken seriously. They occurred over the course of a full week, and were not provoked in any manner proportionate to the response given. Much of the father’s texts were not even responded to by the mother. A reasonable person could not view the father’s texts as either jestful or ambivalent.
[28] The texts were forwarded in the period immediately preceding the return of the mother’s motion. They attack her counsel. They cannot be excused as a harmless excess of personality. The September 28 to October 5th texts resolve some of the prior conflict in evidence and provide a rich context for the parties’ relationship dynamic.
[29] As set out in my earlier decision, both spouses have an equal right to possession of a matrimonial home upon marriage breakdown. An order for exclusive possession is highly prejudicial to a dispossessed spouse. Such orders should not be lightly given.
[30] The analysis within Kutlesa v Kutlesa suggests that a finding of violence requires events additional to the receipt of text messages. In those circumstances the husband had already vacated the home. In my view, his absence from the home somewhat mitigates the potential threat to the wife as set out within the text messages. Thus the subsequent events in which the husband pressed for a return to the home: breaking in, leaving a note and cancelling insurance; provided a more fulsome and necessary context for a finding of violence.
[31] In these circumstances the father is living in the home with the mother. The mother was initially denied exclusive possession on the father’s representation that he could do so “quietly and discretely,” that he was participating fully in the process of resolving issues, and was anxious to maintain a normalized relationship with his daughter.
[32] I find that in these circumstances the text messages are sufficient to support a finding of violence. If I am wrong in this, then I find that it is no longer in Alexia’s best interest for her parents to continue to reside together.
[33] As referenced in my earlier decision, the best interests of a child are paramount in determining an order for exclusive possession. Bortolotto v. Bortolotto, [2002] O.J. No. 2068 (Ont. S.C.J.). My review of the case law concluded that a primary care parent has only been granted exclusive possession in circumstances in which:
(a) there is conflict in the home that is adversely affecting the child;
(b) the stress in the home has become unbearable and leaving the home would be disruptive to the children;
(c) it is not in the children’s best interests for the parents to continue living under the same roof; and,
(d) an order for exclusive possession is otherwise justified.
Rafail v. Naguib [2012] O.J. No. 528 (Ont. S.C.J.); Bright v. Leslie-Bright, [2007] O.J. No. 4408 (Ont. S.C.J.) and Brotherton. Brotherton 2006 CarswellOnt 4281 (Ont. S.C.J.)
[34] Counsel for the Office of the Children’s Lawyer takes no position on the mother’s motion for exclusive possession.
[35] It is of critical importance that Alexia not be exposed to adult conflict. There has been violence between the parents in the form of text communications from the father to the mother. The relationship dynamic now evidenced in those texts suggests that Alexia is at risk. In my view, the text messages clearly preclude any prospective potential that the father can live “quietly and discretely” in the mother’s home.
[36] The relative financial circumstances of the parties have now altered. Of importance to these reasons, the father has been neither forthright nor diligent in his disclosure. He undertook to release certain information from his broker in August as a condition of the earlier adjournment.[^3] He signed a Consent to give effect to his release of information on August 15th, but then he only delivered it to his broker on October 16, 2012, the day before the hearing of this motion.
[37] The father has not filed a current Financial Statement for today’s hearing. He has been unable to maintain his child and spousal support; although he has made some efforts to do so.
[38] In summary, an order for exclusive possession is supported by the record before me.
[39] Order to go that the applicant mother shall have exclusive possession of the matrimonial home: 111 Forrest Heights Blvd. Kleinberg, Ontario effective December 1, 2012. Alexia shall continue to be in her mother’s primary care.
Motion to Strike Pleadings
[40] There is insufficient time within this one hour motion to receive fulsome submissions regarding the applicant’s motion to strike pleadings. The applicant may refresh her motion on a date to be set by the Trial Coordinator after a Settlement Conference has been held.
[41] The father may bring a motion to vary his obligations for child and spousal support[^4] on a date to be set by the Trial Coordinator after a Settlement Conference has been held.
Costs
Costs submissions to be filed within 20 days of release of this endorsement, response within 15 days thereafter, and then reply, if any, and 10 days later. Submissions limited to three pages, exclusive of Bills of Costs and Offers to Settle.
Justice H. McGee
Released: November 6, 2012
[^1]: The father’s two adult sons from his first marriage
[^2]: This is a public record. For the sake of their daughter, and the lack of necessity within these reasons, the whole of the father’s texts will not be published.
[^3]: See paragraph 4(b) above.
[^4]: The amounts ordered by me on March 21, 2012 were predicated on the father’s continued occupation of the home.