Family court decisions that include tech abuse: Exclusive possession of the family home
Family court decisions that include tech abuse: Exclusive possession
About exclusive possession of the matrimonial home
Exclusive possession of the family home may be granted when one partner is violent to the other. There are other factors the court will look at as well, including the best interests of the children.
These are cases where the court found tech abuse to be a form of violence which helped to support an exclusive possession order.
Case summaries
Monitoring a woman’s private communications: Mohajeri and Stroedel, 2020 ONSC 6554
Type of tech abuse:
The father secretly accessed the mother’s computer and installed spyware.
He admitted to looking through 10 years of her emails without her consent. The mother then bought a new computer to have private communications with a family law lawyer and the father again accessed her emails without her consent.
Finding:
The court considered the father’s access of the mother’s private communications as “the type of psychological assault” that is violence under the legal test for exclusive possession in s. 24 of the Family Law Act.
The judge wrote:
…These actions have made the wife aware that she has no privacy in their home, which has resulted in her not feeling safe in the home and that the husband’s control over her will only continue… (para 131)
Outcome:
The mother was granted exclusive possession of the matrimonial home. She was also granted interim primary residence of the children.
Both parents were ordered to have interim joint decision-making of children.
Abusive text messages: Menchella v. Menchella, 2012 ONSC 6304
Type of tech abuse:
The father sent a number of text messages to the mother that were threatening and denigrated her and her parenting of the child.
Finding:
The court found that the text message communication was violence within the test for exclusive possession of the home.
The judge wrote:
There can be no doubt that the vitriolic communications constitute ‘violence’ as intended within Section 24(3) (f) of the Family Law Act. They are threatening, intimidating and were intended to be taken seriously. They occurred over the course of a full week, and were not provoked in any manner proportionate to the response given. Much of the father’s texts were not even responded to by the mother. A reasonable person could not view the father’s texts as either jestful or ambivalent. (para 27)
I find that in these circumstances the text messages are sufficient to support a finding of violence. If I am wrong in this, then I find that it is no longer in [the child’s] best interest for her parents to continue to reside together. (para 32)
It is of critical importance that [the child] not be exposed to adult conflict. There has been violence between the parents in the form of text communications from the father to the mother. The relationship dynamic now evidenced in those texts suggests that [the child] is at risk. In my view, the text messages clearly preclude any prospective potential that the father can live ‘quietly and discretely’ in the mother’s home. (para 35)
Outcome:
The mother was granted exclusive possession of the matrimonial home.