“Can test messages received by a spouse constitute violence pursuant to Section 24(3)(f) of the Family Law Act? Alternatively, can interspousal text messages affect the best interests of a child in a manner that supports an order for exclusive possession?
…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 imposes no variation on the usual analysis.
Violence as constructed within Section 24(3)(f) of the Family Law Act does not require direct physical injury. I adopt the analysis of Fitzgerald J. in Hill v. Hill (1987) 10 R.F.L. (3rd) 225, in which he concludes that the Family Law Act is a remedial stature that can be liberally construed to include within its meaning, an injury achieved by words and deeds:
In my view the violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. 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 behavior 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.
The Court must weigh whether the relevant words were intended between the parties to intimidate, or to be taken seriously. In the absence of a clear meaning between the parties, the court can consider whether a reasonable person would find the words injurious, or alternatively, might view the communication as exchanged in jest, or ambivalence.”
Menchella v. Menchella, 2012 ONSC 6304 (CanLII) at 1 & 10-12