What constitutes spousal abuse in an era of electronic communication?

For decades, Family law only provided legal remedies to victims of physical abuse.  Personal injuries were seen as evidence of the abuse suffered, and Family law responded to that with remedies such as restraining orders, supervised access to children, exclusive possession of the matrimonial home and even compensation for the pain and suffering endured from those injuries.  

As jurisprudence, social science, and mental health developed, the law came to recognize that people could also suffer emotional injuries, especially in intimate relationships.  

Section 24(4) of the Children’s Law Reform Act states: 

“In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of the child to whom the application relates, a member of the person’s household or any child.”

The rise of electronic messaging technology has widened the scope of spousal abuse

Section 24(4) of the Children’s Law Reform Act does not limit the type of misbehaviour to only physical conduct but also includes words, facial expressions and body language that are meant to incite fear, intimidation and threats.   

Although this development addressed non-physical violence, it still did not recognize abusive behaviour via electronic means.  

“Violence through words and deeds is a concept well established in both criminal and civil law.  Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging impose no variation on the usual analysis.  Violence...does not require direct physical injury.”

These were the words of the Honourable Madam Justice McGee in the case of Menchella v. Menchella, 2012 ONSC 6304.

In that case, the court was asked for an order to evict the father from the family residence because of hurtful text messages he was sending to the mother while they were cohabiting and attempting to co-parent their child.  

Section 24(3) of the Family Law Act sets out the criteria for an order for exclusive possession of the matrimonial home and included consideration of “any violence committed by a spouse against the other spouse or the children.”

Justice McGee read the text messages and stated “violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behaviour and impinges on her mental and physical health, violence has been done to her equilibrium as surely as if she had been struck by a physical blow.”

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