By Chantal M. Cattermole and Sarah Tradewell
Communication can be one of the biggest issues between co-parents. Emails and texting are frequently used as written forms of communication for co-parents to communicate in real time, rather than speaking by phone or going through their lawyers. Tensions can run high and the acrimony between high conflict co-parents can lead to heated conversations. Case law demonstrates that Courts are willing to intervene when it goes too far.
In 2021, two important decisions on this point were rendered. One decision, NP v. KRL, 2021 BCPC 324 (“NP”) found that excessive and abusive text messaging constituted family violence worthy of a protection order, and the other awarded special costs against a litigant who disparaged his ex-spouse’s lawyer (CS v. CB, 2021 BCSC 879 (“CS”)). Family law litigants should be cautious about their behaviour, both in person and in written communications, as it could be brought to the Court’s attention with serious consequences.
Written Communication as Family Violence
Protection orders are granted if a Court determines that family violence is likely to occur to an “at-risk family member”, namely, a person’s spouse, former spouse, child, or relative who lives with the spouse or former spouse. This broad and inclusive definition of “family violence” recognizes that kinds of harm extend beyond the infliction of physical violence (Morgadinho v. Morgadinho, 2014 BCSC 192 at 59). “Family violence” is defined in section 1 to include physical, sexual, psychological, or emotional abuse. Even within those categories, family violence can take various forms – including excessive and abusive text messaging.
An earlier decision by the Supreme Court of BC noted the potential for unwelcome texts and emails. In SM v. RM, 2015 BCSC 1344, the Court granted a protection order against the father to protect the mother as a result of hundreds of texts and emails sent to her. However, the Court cautioned that the analysis must be contextual:
[24] I also agree with the observation made in Morgadinho that care must taken to distinguish between mutually unpleasant exchanges separating parties sometimes engage in, particularly through the informal medium that email and text messaging has become, and the commission of acts of “family violence” as defined in the Act. Without more, mere incivility is not the sort of conduct the Legislature intended would attract a protection order.
[25] Having said this, the Legislature has made clear that judges hearing applications of this kind must approach the issue from a broad and contextual perspective, taking into account a variety of factors that frame the risk analysis in determining whether family violence is likely to occur. The inquiry is future oriented, but it takes its shape from past conduct and present circumstances that inform the assessment of risk.
In NP, the Court had previously made a conduct order providing that the parties would communicate only by text message and only to discuss parenting time or parenting responsibilities. NP was subsequently put on a conduct order preventing any contact with his ex-spouse KRL or their child due to the content of his text messages. Despite these orders, NP continued to send “a litany of harassing and vitriolic messages” to KRL, which led to KRL applying for a protection order. In support of her application, KRL provided over 700 pages of text messages from NP, most of which had nothing to do with parenting time or parental responsibilities. The Court noted that the text messages were “staggeringly voluminous and unrelenting”, often continuously from morning until 11PM, including name-calling, threats, and derogatory comments about KRL being a working mother. Given the insulting and misogynistic content of the messages, the Court commented that it was “concerning NP eagerly seeks to raise a female child while holding such antiquated views towards women and readily resorting to the use of misogynist language when angry.” NP’s messages advised KRL that he had no intention of stopping the barrage of texts, regardless of what a judge said, and admitted that getting parenting time was the motivation behind his communications to her.
The Court found that NP’s behaviour constituted a pattern of coercive and controlling behaviour directed at KRL. The Court placed NP on a protection order prohibiting him from communicating with KRL or going to her work or residence for a period of 12 months. The Court also found that this was a rare case where contact between the spouse and the child needed restricting in order to protect the other spouse from further family violence. In the Court’s view, if NP was not permitted contact with the child, then he would not harass KRL regarding his perceived rights to parenting time. As such, and despite the fact that the child may not have been an “at-risk family member”, the Court made a further protection order prohibiting contact with the child.
The broad definition of “family violence” along with the cases set out above form a basis for the Court’s willingness to intervene in cases of excessive and unwanted messages. It is not clear from NP whether communications by text must rise to the level of 700 pages of abusive messages to be considered family violence. Given the Court’s comments in SM v. RM, 2015 BCSC 1344, the content or extent of such messages may not always form as clear a basis for a protection order as they did in NP. It remains to be seen how these decisions are applied.
Special Costs for Badmouthing a Spouse’s Lawyer
Costs in family law are generally awarded to the successful party, payable on a tariff set out in Schedule B to the Supreme Court Family Rules. Because costs are paid on a set scale, they do not cover a party’s dollar-for-dollar legal costs.
Special costs, by contrast, may be awarded where the opposing party engaged in reprehensible conduct in the course of the litigation. Again, special costs are generally not dollar-for-dollar legal costs, but provide a party with a much greater indemnity than regular costs as they tend to be based on a party’s legal fees actually spent.
The CS decision was made after a trial of the family law matter. The respondent spouse had sent a number of emails to the claimant disparaging the claimant’s lawyer, including accusations that the lawyer would overcharge the claimant, had a poor reputation, and would not follow her instructions. The respondent argued that this was simply acrimony between litigants in a family law dispute and that both said hurtful things to each other throughout the course of their separation.
The Court found that the lawyer/client relationship is most successful when the client has full confidence in his or her counsel, and found that an attack on the claimant’s choice of counsel would “sow doubt in the mind of any reasonable person”, thereby affecting the lawyer/client relationship. The Court found that the claimant was alone in the litigation other than her counsel, since that was the only person she could talk to in complete confidence, such that the respondent’s accusations were improper and worthy of rebuke. The Court found that the respondent’s emails were reprehensible and warranted an award of special costs in favour of the claimant, which came to $104,922. As a result of CS, litigants should be especially careful in their communications to the other spouse lest an order for special costs be made against them.
For assistance in assessing your family law matter, or if you have any questions related to co-parenting, communication, or protection orders, please contact a member of our family law group.
