Introduction

In July 2023, I wrote a blog about poor communication involving lawyers with their clients, lawyers with other lawyers, and judges with the parties. A year has gone by, and I felt that I had just scratched the surface about poor communication and its impact on family law matters. As with any relationship, whether personal or professional, people need to have strong communication skills to be successful, or just to avoid problems. Some of the files that I have worked on over past 12 months reminded me of the continuous need for parties in a family law dispute to drastically improve how they talk to and treat one another.

This blog will focus on the poor communication that parties often engage in when they are addressing (or attempting to address) issues that come up between them, either following a separation or following the resolution of their matter in/out of court. I will set out some common examples of the mistakes people make, the usual (yet often unanticipated) consequences of those mistakes, and finally, I will offer some solutions on how to correct these mistakes, which will hopefully lead to better communication. After all, to quote George Bernard Shaw, “the single biggest problem in communication is the illusion that it has taken place.”

Breakdowns in Communication

As I grew up in the wonderful decade of the 1980s, I have told my children how grateful I am that we did not have cellphones or social media back then, as such tools would have instantly memorialized all our mistakes for years to come. Even though we live in a times where big brother and sister if watching out every move, people have not adjusted how they communicate with one another. This is especially true for people who find themselves in family law disputes. Love is strong, but sometimes hate, rage, anger, or contempt is stronger; at the very least, these emotions sometimes blind a person to acting in ways they never would act if they only remembered they were being watched, and who knew what was to come of their words and actions.

When people decide to have a child together, or where fate intervenes and makes that choice for them, they are forever connected with one another as parents of that child. Post relationship, some people struggle with how they will address all the issues that separated parents must face (these are only a few examples):

• who will make the final decisions about the child?
• when will they get to see the child?
• will they have to pay support?
• when will they receive support?

Many people can, and do, successfully navigate the range of emotions that come up when they have to engage with their former partner, or with that person’s family member, to address the questions I set out above. It isn’t always pleasant, but they remain civil, composed and focus on what’s best for the child. Generally, there are 3 ways that people use to communicate:

1. Face to Face
2. Email, Text and Phone
3. Social Media Posting

Nonetheless, each of these ways has certain “traps” built in to them such that, when you are talking with someone you may not necessarily like, or even dislike immensely, you let your guard down. Let me take you through each manner of communication, and I will identify for you the pitfall(s) that separated parties often ignore when doing so.

Face to Face

Despite the advances in information and communication technology, there are some people who simply like talking to another person face-to-face. For some people, it may be that there are language issues; for others, it may be due to cognitive issues; or it just be a sense of propriety that they need/prefer face-to-face communication.

In family law disputes, there are common events that usually invite people to meet face-to-face, such as the exchange of children for parenting time, or when they see others at special occasions involving the child (such as school-related events and extra-curricular activities). Sadly, if there is any “bad blood” between the parties, one or both sides of the dispute will often use such opportunities to catch the other side acting improperly or saying something improper. As I said earlier, the fact that cell phone cameras are everywhere nowadays would make you think that people would be on their best behaviour. This not the case. Despite the ubiquitous nature of cellphone cameras, adults do say the darndest things, and whether they know it or not, they are often being recorded.

When people involved in family law disputes start recording one another, there is a common belief that the audio or video recording “is worth a thousand words,” and that they can use this “gotcha” moment to their advantage in their family law dispute. For the most part, this is not the case. Over the past couple of years, judges have been clear in their rulings that they will either not watch the audio/video recording, or if they do, will give it little to no weight. Why? The judges want to discourage people from acting in this manner, especially when children are involved and are witnesses to the recording.

In a recent case, a mother recorded her former partner during a scheduled child exchange. She expected to catch her ex being belligerent to her, as she claimed her was quick to temper when they were still together. She wanted to show the judge that he was a bad parent, and that she was innocent victim of his behaviour, to gain a litigation advantage. The judge made the standard pronouncement that such recordings are not usually helpful, especially since it was done surreptitiously (i.e., without the other side’s knowledge). Such video clips usually do not tell the entire story of what was taking place. It is a moment in time, often taken out of context. But the judge was compelled to advise the mother that her little trap had backfired on her. Not only did it show that the dad was not as bad as a person as she had made him out to be, but it also showed that the mother who was recording the interaction was “the troublemaker,” trying to instigate an argument with him, and thus not acting in a child-focused manner. Trust me – you don’t want a judge pointing that out to you at your conference, motion or trial.

Email and Other Written Communication

With cellphones and other technology, people can instantly chat with one another by means of email, text, and instant messenger, to name but a few methods. People still like talking to one another by good old-fashioned phone technology, but it is “the new kids on the block” that dominate. Again, much like with cellphone cameras, what you accept with the convenience of using this technology is the risk/trap that what you say can and will be recorded, and it can and may be used against you in a court of law.

On occasion, I have had to obtain a brief transcript of a court proceeding I’ve been in, and it is awfully humbling to see your speech spelled out for you, with all the “umms, “ers,” and other fillers we use without every knowing we do so. It is embarrassing, but it provides a good lesson to be aware of what you are saying.

However, it is so much worse when you are having a conversation with someone through text, email or other messaging programs, and you let your guard down. You decide to let loose a torrent of curses, expletives and other choice words that are there, in black and white (or colour), for everyone to see. You don’t think it’s a big deal, but it is. It’s bad enough to see how poorly you may spell, or to see that you need a refresher on using proper grammar, but when the content of your exchanges are used against you, to show your “true intentions,” it is difficult for us, as lawyers, to minimize the damage for our clients.

Unlike an audio/video exchange, email and text exchanges do not have tone or emotion attached to them, which sometimes leaves it open to misinterpretation by the person who is reading what you’ve written. You thought you made a sarcastic comment or a harmless joke, but it may not look like that to a judge, especially when the judge is reading it months later in court. You may not even remember what you wanted to say, but rest assured, someone else is going to conclude what you did say. Can you see how this could completely sabotage your claims in family court? An idle threat made out of frustration when you’re asked to pay more child support can look like you are planning to hurt someone. A careless response about your ex’s new partner may be seen as an inability to let go of the past, and you may be seen to be mentally unstable. What if you made a promise to see the kids on the weekend, but you cancel due to last minute plans – the other side may use this as evidence to paint you as an uncaring parent. See how easy it can be to manipulate the facts?

As with audio/video exchange, email and text exchanges are sometimes (not always) discouraged by judges, as they may not have the entire exchange that took place between the parties. But don’t always bet on that happening. If the evidence if necessary and reliable, a judge will admit it into evidence, whether you expected it to be admitted or not.

One final comment on this point. With the growing use of emojis, courts have interpreted their use as an acceptable form of communication. So, if you use off-coloured or inappropriate emojis (or even a GIF or a meme) to convey your thoughts on a subject, rest assured that if you’re in a family law case, the other side may decide to use that communication to help their case, weaken your case, or both.

Social Media

With almost everyone nowadays owning and operating a cell phone, some people have decided to share their stories (real or otherwise) with the world through the use of social media applications. Again, this craze (and I use the word intentionally) is often fraught with peril in family law cases, which is sadly used by lawyers and litigants alike to the detriment of the parties. On all forms of social media, people have no qualms about posting:

• what they are doing, or what they claim to be doing
• what they have done, or what they claim to have done
• what they plan to do, or what they claim to plan to do
• and all with whom, when, where, and how often

For some reason that I cannot yet understand, people think it is okay to say what you want in/on these forums, and that it has some sort of “sanctity” or “privilege” to it, that it cannot be later used to impugn their credibility, their integrity, their careers, their relationships, or even their family law case. Over the last number of years, we have all seen/heard about ordinary people who have made posts about current affairs, political movements, religion, social issues and personal issues that have gotten them “cancelled” (lost their job, their career, their reputation, their relationship, or worse, their life). These same posts can and may be used in family law proceedings to demonstrate a person’s true character and intentions. Just like some of the other methods of communication I have already addressed, it’s a bit of a “toss-up” as to whether a court will or will not rely on this evidence.

For example, to illustrate my point, if you are professing to not be able to work and cannot pay child and/or spousal/support, it’s not a good idea for you or your new partner to post photos/videos of the two of you in the tropics, where you are golfing, jet ski-ing or happily dancing the night away. If you take the position in court that the father of your newborn child cannot have any overnight visits with her because you are always breastfeeding the child, it’s not a good idea to post pictures/videos of you online where you are seen going out on to the clubs, drinking to excess or otherwise spending hours away from the baby. And for good measure, don’t have your friends post a photo/video of you consuming drugs while hanging out at the cottage, especially when your former partner has made recent about you claims in court that you have a problem managing your drug use (especially if you have sworn an affidavit that you deny any drug use at all). See how some people can easily misinterpret the situation?

So, What Can You Do?

If I had a simple answer to this question, I’d offer it to you, but I do not. I’m not going to tell you to not live your best life, or to not be true to who you are, or to live in a constant state of paranoia that you are always being surveilled (even if you are). However, I will offer some suggestions to help you navigate the world we must all live in, especially when you’re actively involved in a contentious family law matter:

1. When you are dealing with your former partner, or any of their family members, in a face-to-face environment, expect that you are being recorded, even if the other side denies it, and act accordingly.
2. When you are dealing with your former partner, or any of their family members, on a written communication platform (text, email or instant messaging), anticipate that what you are typing out will soon be transcribed in an affidavit for everyone to read at time/date, solely to be determined by the other side.
3. When you are dealing with your former partner, or any of their family members, on social media, such as Facebook, Instagram or Tic-Toc, manage your privacy settings constantly, and only allow access to a select few. Expect that what you post online will be seen by everyone eventually, whether that was your intention or not.
4. Consider using a communication application, such as Our Family Wizard, AppClose, or other such applications, with your former partner. They will record and monitor what each of you say, and how each of you say it – it can warn you if you’re losing your cool.
5. Watch where you place your trust. Not everyone has your best interests at heart. Just because someone seems great online does not mean that they are. Get to know someone before you share your thoughts and experiences freely with them online. Even then, someone who is your friend or co-worker today, can be a simple acquaintance or even an enemy tomorrow; worse yet, they could be a key witness against you at trial in a few months’ time.

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca.