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Parents in British Columbia are responsible for the way they speak about their co-parents.

Emotions can feel overwhelming leading up to and following separation and divorce. The British Columbia Court of Appeal has ruled, however, that high emotion is not an excuse for damaging communications. This may come as a surprise in a time when social media has made it easy to text, tweet and post reflexively.

In the decision of Friedlander v. Claman, 2016 BCCA 434, the British Columbia Court of Appeal effectively ruled that parents are responsible for keeping their emotions in check when communicating about their children.

In Claman the mother and father of a pre-teen, were bound by an Order that:

“All communications between the parties shall be respectful….[and, except for emergencies] by email and shall be restricted to matters relating to [the Child]….”

Despite this Order, the mother of the child sent the father texts and emails that Madam Justice D. Smith for the Court of Appeal said unambiguously used “language that is threatening, taunting, derogatory and inflammatory, and that far exceed the permitted communications concerning the health and education of the child”. The mother’s communications included allegations of criminal activity by the father’s brother, accusations of lying and threats to report the father to the Ministry (presumably of “Child and Family Development” and “authorities”).

The mother, while admitting she had sent most of the communications in issue, said two things in response to the father’s assertion that the communications constituted contempt of a Court Order:

First, the mother said that the Order for “respectful communication” was unclear. The word “respectful” was too ambiguous for her to know what she could say and what she couldn’t. Second, she said, her conduct was only “trivial” or emotional, reactive or possibly “irresponsible” but not so wilful or intentional as to constitute contempt of a Court Order.

The Trial Judge and then, as stated, the Court of Appeal, disagreed. ** Madam Justice Smith, for the Court, wrote plainly and firmly, that people understand what respectful communication is and can be held to it. At paragraph 57 of her Reasons, she said:

“The requirement for ‘respectful’ communication is easily understood with a modicum of common sense. Any reasonable person would understand that threats, unsupported allegations of misconduct, name-calling, and defamatory or degrading remarks are not respectful.”

Ultimately in the Claman case, the Court of Appeal upheld the Supreme Court Judge’s Decision to move the child into a primary residence with her father from a shared parenting arrangement. The mother’s inability or unwillingness to appreciate the harmful impact of her words about the father on the child, and willful disregard for Court Orders, were factors in this change.

Most parents do not want and cannot afford to bring disputes about communication to Court. “Respectful” communication between co-parents, however, is vital to the health and welfare of children.

If communication is an issue between you and your co-parent after separation or divorce, the professionals at Brown Henderson Melbye, in their capacities as lawyers, mediators, arbitrators or parenting coordinators, can talk to you about:

  • making a parenting or separation agreement or getting a Court Order that requires “respectful” communication or establishes communication protocols;

 

  • child specialists, divorce coaches or other professionals who can provide education about, and the skills to engage in, healthy and respectful communications; and,

 

  • how to enforce agreements or Orders about communication whether you are in a low conflict situation, where discussion and education may be sufficient, or like the Claman-Friedlander family, a higher conflict situation where processes such as court or the use of a parenting-coordinator might be necessary.

At Brown Henderson Melbye we encourage our clients to abide by the Facebook Post that circulates from time to time, suggesting that we all:

Dance like no one is watching, and,

Text, email and tweet like it will be read in court one day.

 ** The Court of Appeal reversed some of the contempt rulings made by the Supreme Court Judge, for reasons relating to the laws of evidence, while upholding others as set out above.