By Graeme Kluge
Texting has increasingly become one of our primary and preferred methods of communication. It is estimated that 6.8 billion people worldwide own cell phones, sending 22 billion texts each day. The allure of sending a text message is obvious. Texting offers flexibility. You can do it from anywhere at any time and it is typically quicker and easier than a phone call.
Texting is indeed an example of how technology can have a positive impact on our everyday lives. However, while the speed and convenience of a text is one of its biggest advantages, it can also present problems if you send messages when you are angry or upset. These texts can lead to heated arguments. Even a message with no malicious intention can be taken out of context.
We have all heard the warning, “Anything you say can be used against you in a court of law.” The same applies to texting. Any messages you send to your ex can be presented as evidence in your divorce case and potentially have a significant impact on not only your future but also that of your children.
At Demas Schaefer Family Lawyers we realize clients are not coming to us when things are at their best. It can be easy to lash out at your former partner in times of anger. But you should always think twice about what you text. We are here to guide you and offer sound advice on communicating with your ex.
A time and a place for texts
There can be many issues to deal with when you are in the middle of a divorce, especially when it comes to family access rights. Some people may feel overwhelmed and stressed. It is natural to try to make life a little easier as you move through this part of your life, especially in an acrimonious divorce. You may not have the time or the inclination for speaking face-to-face or on the phone. Some still harbour resentment toward their ex and prefer not to speak directly to them. This is where a text or an email can be helpful.
However, they should be used with the greatest of care. It is not uncommon for messages to escalate into abusive or aggressive language. Because you are not facing the person you are messaging it may be easier to cross the line of common courtesy, especially if you are upset.
It is not unusual for people to think of their texts as private interactions but remember, the person receiving your text can save it, reproduce it and even redistribute it.
Of course, it is not just a text or an email that can be a problem. Social media platforms such as WhatsApp, Tik Tok, Twitter, Instagram and Facebook may seem like a good place to air your relationship grievances. But once any statement you make is online, it has the potential to become evidence that can damage your custody case.
Without realizing it, the text you sent your former partner in the heat of the moment could be used to assail your character. There is also the chance you could disclose something you didn’t intend that weakens your case.
And texts not only have the potential to hurt you in court, but they could also damage your relationship with your children if they happen to see the angry messages directed at their parent.
Text messages as evidence
Text messages are often used as evidence in court and can document a person’s ideas, thoughts and expressions. A family court judge can use these messages to determine a person’s parenting capacity or if there is a propensity toward family violence or abuse. They could also be used to determine whether one parent is being unreasonable or untruthful.
While courts are likely to accept a text as evidence, a judge will demand proof that any message put forth was not obtained illegally through theft or other illicit means and has not been fabricated.
Because technology is constantly evolving, it is likely the rules governing how text message evidence is accepted at trial will also need to change in order to ensure its veracity. That is why it is prudent to seek legal advice when this type of evidence is used.
Text messages can turn a divorce toxic
A text sent in the heat of anger could escalate into an ongoing dispute that may ultimately hinder your attempts to settle the access issues in your divorce. In one case, Ontario Superior Court Justice Darlene L. Summers found a divorcing couple’s text conversations “would deteriorate to insults, swearing, and name-calling.”
“Between them, the parties filed hundreds of pages of text messages relating to access from 2013 to 2019. The content was rarely productive or pleasant,” she found. “I am satisfied that both parties contributed to this dynamic and each bears responsibility for the now longstanding refusal or inability to communicate effectively.”
Summers stated that as parents, they “have moved well past the point where they might reasonably be expected to rise above their personal animosity and communicate in a way that would allow them to make timely decisions together” in their son’s best interests.
“Their pattern of discourse is toxic and too well entrenched to expect genuine change,” she wrote. “Among other drawbacks, texts are rife with potential for misunderstanding, for being socially disruptive, and for creating expectations of an immediate response, be it in the mind of the sender or the receiver.”
When in doubt, put your phone down
If you text your former partner when you are angry you could end up saying something you regret or even something you did not mean. Messages can also be misinterpreted, so never assume what you are writing will be taking the spirit you intended. Avoid making accusations or sending anything controversial or insulting. The best practice is to use texting for practical exchanges of information, such as arranging pick-up times for your children.
If you do need to text and have doubts about the message you want to convey, put your phone away and come back later to reassess what you have written. Avoid sending impulsive messages. Be civil, if only for your own sake. You may feel hurt or betrayed by your ex. But remember, while you don’t have to like your former partner you should try to be respectful.
At Demas Schaefer Family Lawyers, we will be there to guide you every step of the way during your divorce. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.