Clark v Moxley, 2017 ONSC 4971

This case – regarding a parenting dispute about whether there should be an equal parenting schedule and whether the child should attend the school of his choice or the school that his mother had chosen for him – serves as a caution and reminder about how the use of emails (and social media, generally) can impact one’s family law matter.

Background

The parties were married on June 18, 2004 and separated in October 2010 and continued to live under the same roof. The parties physically separated in February 2011; and the matrimonial home was sold.

The parties’ son was born on August 1, 2005.

In July 2011, the parties entered into an interim separation agreement, which provided for shared parenting of their son.

The Father’s job training and work placements took him away from where the parties’ resided. During these times, the child was left in the Mother’s care. Even when the father returned, their son continued to live primarily with the Mother.

The Mother re-partnered and began to share a home with her new partner and his two children (from a previous relationship) in 2015.

Following her move, the Mother wanted the son to change schools – but the Father did not agree to this. The Mother brought a motion for same – which was not granted. Justice Roger did however order that the Father to assist with driving the son to and from school.

The son was to start middle school in September 2017 – and the Mother again wanted him to attend a school closer to her home. The Father, on the other hand, wanted the son to attend the local high school in their previous neighborhood (which was approximately a 60km roundtrip from the Mother’s residence).

The Mother sought an order that the son attend the school close to her home – noting that the son’s primary residence was with her, among several other reasons.

The Father argued that the son should remain in the school community that he has been in since kindergarten.

Analysis

The Ontario Superior Court of Justice begins by noting that the child is 12 years old, gets along with both his parents, and is “bright, happy, likable and well-adjusted.” The Office of the Children’s Lawyer presented Noah’s views and preferences, and advocated on his behalf – taking the position that Noah expressed a strong view that he wants to remain in his current educational communicate and wants an equal parental timesharing arrangement.

Despite Noah’s close and loving relationship with both parents and his preference to spend equal time with both parents, the Court notes that the Father has a history of communicating inappropriately with the child (i.e. texting the child while he was in school to voice complaints about the Mother not letting the Father pick the child up from school). Although the Father acknowledged that he had made some mistakes, the Court noted that the Father’s statements rang hollow when one reads the e-mail that the Father sent to his family (copying the Mother), in which he disparaged the Mother and urged his family to ignore her email to his family about the child’s upcoming graduation.

Giving considerable weight to the emails between the Father and the child – those which were rather inappropriate – the court found that it was difficult to accept that the child’s views and preferences were uninfluenced by the Father. Most noteworthy is the following from the Court:

The advent of emails and social media have fundamentally changed how trials and motions unfold. There is rarely a case anymore in which emails and texts do not form a feature of the evidence adduced. In this particular case, the father’s emails are very damaging to his case and make it clear that he is unduly influencing the child and that the child’s wishes are tainted by the father’s improper conduct.

As such, and despite the child’s views and preferences, the Court concluded that it was in the child’s best interests that the Court not accept the child’s views and preferences as determinative.

Given the above, this case serves as an important lesson for anyone involved in a family law proceeding – be wary of your e-mails, texts and social media posts, and always assume that everything you do or post online will be found and used against you.