mai 19. 2020

Child “Deserves Better”: Court Orders Parents to Stop Using Nasty Texts as Their Sole Means of Communication

O’Connor v. Merlo, 2020 ONSC 2531 (CanLII)

In the shadow of the COVID-19 pandemic and its physical distancing protocols, we are all getting comfortable with communicating by electronic means, such as text messaging. But for separated parents who are trying to manage their custody and access issues, there needs to be more.

This according to the court in the recent decision in O’Connor v. Merlo, where the court framed its ruling this way:

The parties, Ms. O’Connor and Mr. Merlo, are the parents of Antonino O’Connor-Merlo. He was 2½ years old when this case started. He is now 11. The dispute is primarily about the custody and access arrangements that are in his best interests.

The parents were at-odds over who should have custody over their son. The mother contended that it was in the boy’s best interests to maintain his primary residence with her, and that she should be awarded sole decision-making authority. She pointed out that she had been the parent responsible for his well-being since birth, and that she alone made all decisions. She and the father did not talk – they conversed by text only – and she claimed that respectful communications with him were impossible.

The father, in contrast, claimed that joint custody was in the boy’s best interest. He rejected the notion that he and Ms. O’Connor could not communicate; he said they did so for several years after separating, and could do so again. He expressed concern that without joint custody, the mother would continue to discount his role as parent, and cut him out of important decisions affecting the boy’s life.

The court heard that according to the evidence of psychologists, the boy had learning challenges which included Oppositional Defiant Disorder. Yet the father claimed he had never experienced disrespectful and oppositional behaviour from him. To this, the court said:

… however, the text messages between the parties told the story. Mr. Merlo blamed Ms. O’Connor for Antonino’s behaviour, alleging that he could only have learned such conduct and language in her household. Ms. O’Connor, in turn, blamed Mr. Merlo for Antonino’s tantrum alleging that he repeatedly disappointed Antonino and this time was the result of one too many broken promises. Based on Mr. Merlo’s texts, Antonino’s outburst was profane, aggressive, and occurred in a public setting. Almost immediately, Mr. Merlo texted Ms. O’Connor to come and get him. I accept Ms. O’Connor’s evidence that Antonino has special needs.

The mother admitted that since the father was typically not involved, she was unaccustomed to including him in determining the boy’s needs. Over the years, she had deliberately not told him about some events and decisions she had made that affected the boy, partly because any attempts to communicate with him quickly devolved into a volley of insults. To illustrate this, the court was presented with reams of evidence in the form of the text messages that the parties had exchanged over the years, about which the court wrote:

Between them, the parties filed hundreds of pages of text messages relating to access from 2013 to 2019. The content was rarely productive or pleasant. Mr. Merlo’s texts to Ms. O’Connor usually started as inquiries into Antonino’s whereabouts – why he was not at the drop-off location, why she was withholding access, why he had not been told about a certain event or activity, or why he had been unable to reach Antonino. Ms. O’Connor’s replies, if any, were often dismissive and uninformative. Mr. Merlo would frequently react by either calling her or sending further texts. Their exchanges would deteriorate to insults, swearing, and name calling. I am satisfied that both parties contributed to this dynamic and each bears responsibility for the now longstanding refusal or inability to communicate effectively.

In light of this evidence, the court concluded:

I find that Mr. Merlo and Ms. O’Connor have moved well past the point where they might reasonably be expected to rise above their personal animosity and communicate in a way that would allow them to make timely decisions together in Antonino’s best interests. Their pattern of discourse is toxic and too well entrenched to expect genuine change, even for Antonino’s sake.

The court rejected joint custody as an option. The parents had shown they could not communicate effectively, so there would be a significant risk of increased conflict in their son’s life. Instead, the court decided that the mother was to be the sole decision-maker, but with input from the father. This would reduce the chance that she would continue to exclude him from participating in the decision-making that affected the boy.

Specifically, the court ordered that the mother must consult with the father in writing, and consider his opinion before making any significant decision relating to the boy’s health, education, religious upbringing, general welfare and well-being, including his extracurricular activities. She was also ordered to advise the father of her final decision within 48 hours of making it.

As for the poor state of communication between these parents, the court ended with this admonishment:

It is also incumbent on the parties to take all reasonable steps to improve their ability to communicate about Antonino. He deserves better than texting between his parents. That medium has not served him well to date. Among other drawbacks, texts are rife with potential for misunderstanding, for being socially disruptive, and for creating expectations of an immediate response, be it in the mind of the sender or the receiver. For this reason, all future communications between the parties regarding Antonino shall be in writing, via email, using the parenting application known as Our Family Wizard. The parties shall use the version that includes the tone meter.

For the full text of the decision, see:

O’Connor v. Merlo, 2020 ONSC 2531

[This post by Russell Alexander first appeared on FamilyLLB.com on May 11, 2020]