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By LegalMatters Staff • Toxic texts can tip the scales to the other side in an acrimonious child custody case says Toronto family lawyer A. Julia P. Tremain, who advises clients to carefully consider their messages before hitting send.
“Texts are hugely problematic in family law. They are useful for exchanging some information but aside from that they present a problem if texts become out of control,” says Tremain, partner with Waddell Phillips Professional Corporation. “I always tell clients not to text anything controversial. Don’t text when you are angry. If there is any doubt about the message, put your phone away. Come back later and reread it or have someone else read it.”
She tells LegalMattersCanada.ca that texting can be a convenient form of communication, but she has seen too many instances of abusive or aggressive language that can be harmful in court.
‘It’s just anger’
“I always recommend clients use texting only for a practical exchange of information such as telling their former partner they are going to be late or something that needs to be clarified,” Tremain says. “However, when people get agitated, they often convey the acrimony, they don’t text for the right reasons. It’s just anger.”
She says the problem is not new; since the advent of email, people have been sending messages expressing thoughts they might not say in person.
“People often send nasty texts because they are impulsive. They don’t have the same checks and balances they would if they were face to face with someone,” Tremain explains.
She says because texts are “instantaneous,” it can be easier to cross the line of common courtesy.
“Too often when people get angry, they don’t think and make hasty decisions. They use technology and sometimes they don’t use it well,” Tremain says. “It used to be you had to pick up the phone to yell at someone. Then it moved to email and then texts.”
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She says texts can be used in a “passive-aggressive” manner that can exacerbate an already rancorous relationship.
“Sometimes the other side doesn’t respond to a text for good reason, for example, if their former partner is abusive,” Tremain says. “However, if you choose not to respond to a legitimate question, the other side may be sitting there getting madder and madder and texting more, getting angrier and angrier.”
Parents admonished
She points to a recent child custody case where the court admonished a former couple for their text messages to each other regarding their son.
In her judgment, Justice Darlene L. Summers found that 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 writes. “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 found the parents “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 writes. “He deserves better than texting between his parents. That medium has not served him well to date. 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.”
Summers ordered the couple to communicate via email, using Our Family Wizard (OFW), a program developed to manage shared parenting schedules and co-parenting information.
Effective tool
Tremain says OFW is an effective tool that allows parents to communicate while keeping track of schedules and correspondence. It also offers suggestions to tone down potentially offending messages between the two parties.
She says it’s important for people to realize the harm that can come from caustic communication.
“Children always know far more than their parents think they do. Kids sometimes look at their parents’ phones,” Tremain says. “It’s a level of conflict that can be ratcheted up instead of down.”
In the end, she says it all comes down to mutual respect.
“Try to be civil. You don’t have to love the other person, you don’t have to even like them, but you should be polite,” says Tremain.
