Text Messages and Harassment in Family Law

If you are in the midst of a contentious separation or divorce, it’s easy to get embroiled in a heated exchange of text messages with your spouse. All it takes is to pick up your phone, type out a few words, and … the shots are fired. 

It’s one way to vent your frustrations, but these exchanges can escalate rapidly. You may find your spouse texting you dozens of times in a row, or sending texts at all hours. They may persist even though you ignore them, or take steps to block their access. The texts may even include threats of violence, harm to your or your children, or property damage.

So what is the Canadian law, around harassing text messages? 

Text-based Harassment: A Criminal Offense

To put it bluntly:  Harassment through texting can form the basis for criminal charges. In a recent Family case called Walsh v. Tober, 2023 ONSC 7111 for example, the father had sent harassing and emotionally manipulative texts to both the mother and their child, following separation. They included threats and emotionally charged comments. The child ended up having to block her father.

The father’s persistent messaging resulted in him being criminally charged with harassment. He was convicted and sentenced to probation with a no-contact order. The court also found that this conduct amounted to “family violence” under Ontario law, and it was a key factor in its decision to deny him parenting time, unless it was initiated by the child. 

Cyberstalking

Related to criminal harassment is the concept of “cyberstalking”. This involves harassing someone through technology, including text messages. It can cover sending unwanted messages repeatedly, as well as related misconduct such as using social media to make defamatory posts, or attempting to manipulate the victim’s online presence.

Although the Canadian Criminal Code does not currently include a crime specifically called “cyberstalking”, its component behaviours can be readily prosecuted under other provisions, such as criminal harassment (Section 264), and defamatory libel (Section 298).

Related: Is Tracking Your Spouse’s Phone, or Hacking Their Computer, Illegal? 

Text Messages and “Online Harassment”

Then there is the concept of “online harassment”, which is a civil tort.  This was officially recognized by the Ontario court recently in a case called Caplan v. Atas, 2021 ONSC 670. Admittedly, it was not a Family Law case, but rather involved a woman who had engaged in a relentless campaign of online defamation and harassment against individuals with whom she had grievances.  These included her employers, various lawyers, and their families. The woman used the internet to spread malicious falsehoods over the course of years, and they ranged from defamation to outright harassment. 

Faced with this level of sustained misconduct, the Ontario court recognized that traditional defamation laws were inadequate to address it. It recognized a new tort of “online harassment”, which applies when someone “maliciously or recklessly” engages in communications that are so extreme and outrageous that they go beyond all bounds of decency. 

This tort – which can also be asserted in appropriate Family Law scenarios – has the potential to cover harassment via text messages, social media, and other online platforms. It merely requires proof that the perpetrator intended to cause fear, anxiety or distress to the victim. 

Related: Online Security Tips During Your Divorce

Injunctions

Finally, harassing text messages can also prompt the court to order an injunction. An example of this is found in a case called M.S. v. T.V., 2022 MBKB 211, where a man asked for an injunction to stop his ex-partner from sending harassing text messages and posting defamatory statements online. She had sent multiple distressing messages to him and his mother after their breakup, and had made public accusations about him on social media. The court readily granted an injunction preventing the woman from continuing, emphasizing the need to prevent further detrimental impact on the man’s personal and professional life. 

Are You Being Harassed by Text?

Text message harassment and cyberstalking are serious offenses that can lead to both criminal charges and civil consequences. If you are facing this kind of misconduct from your former partner, we can help. Give our offices a call.