When a couple makes the decision to separate, one of the primary considerations involves deciding who will continue to reside in the matrimonial home. Some parties choose to reside in the home together, notwithstanding their separation, and pending the resolution of their matrimonial matter. However, conflict may very well arise, to the extent where continued cohabitation is neither recommended nor practical. Particular concern arises in situations where children are also present in the home.

When conflict in the home amounts to violence, the recourse for the victim of the violence is legally referred to as exclusive possession of the matrimonial home. However, what about the threat of non-physical violence using such means as email, text messaging, or other electronic methods?

Section 24(3) of The Family Law Act establishes that the criteria for granting exclusive possession of the matrimonial home is all but easy to meet.

More specifically, section 24(3) states:

In determining whether to make an order for exclusive possession, the court shall consider,

1. The best interests of the children affected;
2. Any existing orders under Part I (Family Property) and any existing support orders;
3. The financial position of both parties;
4. Any written agreement between the parties;
5. The availability of other suitable and affordable accommodation; and
6. Any violence committed by a spouse against the other spouse or the children. R.S.O. 1990, s.F.3,s. 24(3).

In the case of Menchella v. Menchella, the Superior Court of Justice considered the issue of whether text messages sent from a father to a mother were sufficient to establish violence, as required by section 24(3)(f), to the extent where an Order for exclusive possession was  justified.

In looking to applicable case law, the Superior Court recognized that non-physical acts can, in fact, be considered violence within the ambits of section 24(3)(f). The court specifically stated that direct physical injury is not required.

According to the Superior Court’s analysis, determining non-physical violence involves an inquiry into the purpose of the relevant words, and whether the words were to be taken seriously. The court also recognized that in instances where there is no clear meaning of the words, an objective analysis regarding how a reasonable person would perceive the words is required.

As mentioned above, where there are children involved, the court will also perform an analysis regarding the best interests of the children. In doing so, the court will consider:

1. The possible disruptive effects on the child of a move to other accommodation; and
2. The child’s views and preferences, if they can reasonably be ascertained. R.S.O. 1990, c.F.3, s.24(4).

In Menchella, there was a 12-year old daughter also living in the home, and notwithstanding the fact that the parties’ daughter had not been exposed to the violence, the court determined that the nature of the parties’ relationship put the child at risk.

Based on the analysis outlined above, the court determined that there was sufficient evidence to justify an Order for exclusive possession.

Pursuant to Menchella, individuals who have historically hid behind electronic mediums to make inappropriate and violent statements, will now learn that what is said electronically, can support a finding for exclusive possession, even when there are no physical instances of violence between the parties.

This is a terrific decision by Justice McGee as it recognizes that text messages are a strong indication of what an individual is like in person. Justice McGee makes clear to all litigants that they are not to press ‘send’ when expressing strong, negative feelings towards a spouse or ex-spouse.

Another important thing that separating spouses are wise to keep in mind:  “privacy” is almost non-existent on the Internet. Emails and texts from separating spouses are discoverable. So, if you don’t want it coming back to haunt you, don’t send negative and menacing messages in the first place. Simply vent on paper, and then destroy the paper (with a cross-cut shredder)!