Behaviour, Boundaries and Privacy after Separation

The previous section in this chapter talked about the emotional aspects of separation, and how they can affect the choices we make to deal with the legal consequences of separation. The next section, "Separation and the Law on Separation", talks about those legal consequences in a lot more detail, but this section is first going to talk about the importance of boundaries and good behaviour after separation.

Introduction

We have all sorts of social scripts about how people meet, fall in love, marry and start having children. You can't watch a Hugh Grant rom-com, walk past the supermarket greeting card aisle, or read one of the very fine novels published by Harlequin Enterprises ULC without have those scripts reinforced. What we don't have are scripts about how people separate. Yes, Hollywood has dabbled its toes in this plotline — Marriage Story and War of the Roses spring to mind — but these are fairly awful stories. What we don't have scripts about are how people separate well.

In 1967, two psychologists, Thomas Holmes and Richard Rahe, published a study showing that the end of a long-term relationship is one of the most traumatic events people will endure, second only to the death of a spouse or a child. That seems about right to me. This trauma leads people to do and say things that they'd never do under other circumstances. I've seen people behave far more cruelly toward family members in family law and wills and estates cases than they would ever behave to anyone else, including an enemy.

Perhaps this odd and unpleasant phenomenon is where the saying "familiarity breeds contempt" comes from. But maybe there's another cause than simple familiarity. When spouses separate, particularly when they separate suddenly, they go through an awful transition — from loving partners who would trust each other with their lives to adversaries pitted against each other — in the blink of an eye. That's hard. Understandably, this transition can encourage significant mistrust, ill-will and suspicion among everyone involved.

It takes a big person to accomplish the transition from companions to coworkers with care and grace. Those of us who don't have the luxury of undertaking the "conscious uncoupling" Gwyneth Paltrow recommends have to come up with an awful lot of patience, respect, and tolerance. (And maturity. Maturity was a common characteristic among the majority of my clients who were able to rise above the emotional battlefield.) On top of that, you also need to be fairly empathetic and develop some pretty top-drawer communication skills.

This section provides some observations, tips and suggestions for those of us who lack the patience of Mother Theresa, the forbearance of Mahatma Gandhi or the wisdom of Siddhartha Gautama. While a lot of these comments are just common sense, you may discover one or two suggestions that help.

Good behaviour, bad behaviour

It is so very, very tempting to lash out at your ex when a relationship ends, especially if you didn't see it coming or there was something embarrassing about your separation, like an affair. You shouldn't. Let me tell you why.

First, by cranking up the emotional temperature, you increase the likelihood that your family law problems will be resolved in court. While there's nothing necessarily wrong with that, resolving problems in court takes longer and costs more money than resolving family law problems any other way.

Secondly, I'm sure you want to move past your separation and on with your life. I know that's a tall order, especially when the relationship you've left was a long one, but the more you remain stuck in the indignant and vengeful phase, the longer it'll take you to reach that happy place where you merely regret your relationship, or its end, or both.

Thirdly, arbitration and litigation are based on evidence, and evidence comes in many forms. It comes as email print-outs, screen-shots of text messages, downloads of social media accounts, photocopies of notes and letters, and all of the wonderful things that forensic technicians can pull out of computers and smartphones. Do you want your arbitrator or judge reading through this sort of stuff? Your anger might be wholly justified, but I don't think you want someone in a position to decide your case reading through all of the things you said when you were angry.

Fourthly and most importantly, the two key predictors of children's adaptation to their parents' separation are the quality and strength of their relationships with each parent and the nature and duration of the conflict between their parents. This is tremendously important because parental conflict has a number of short- and long-term negative impacts on children's wellbeing. The longer you and your ex jab at each other, the longer it'll take you to move out of conflict and the more damage you'll do to your kids.

The problem, of course, is resisting that temptation. I can't tell you how to do that; it's different for everyone. All I can do is emphasize how important it is to separate with as much dignity and grace as you can muster.

Managing online life

Don't air the details of your relationship and your separation, or trash your ex, on the internet. You can try to delete your comments later, when you've come to regret them, but the internet never forgets. It's almost a certainty that there's a record of your comment somewhere in cyberspace. The behaviour you need to avoid includes:

1. slagging your ex on Facebook, Instagram and other kinds of social media;
2. leaving negative reviews on professional or commercial rating websites, like Yelp, Angie's List, LawyerRatingz, or Rate my Professors;
3. publishing copies of letters, photos and personal notes online;
4. publishing copies of affidavits and other court documents; and,
5. posting links to court decisions involving you, your ex or your children.

It's worth remembering how tech-savvy your kids are — or will be. Have you ever googled yourself? Most people have. Ask yourself what your kids are going to find when they google you.

It's also worth remembering that if something can be printed, it can be attached as an exhibit to an affidavit. That includes your Facebook posts, your text messages, and your emails. Before you hit that send or post button, stop and spend a little bit of time thinking about what a stranger would think of you after reading your post, text message or email.

Managing real life

You also need to resist the urge to lash out in your offline life. Cry on the shoulders of your friends and family; use them to vent your frustrations, but leave it there. Remember that if things get ugly and you wind up going to court, everything that you say or do can be introduced into evidence. Remember also that when the court is required to consider the best interests of the children, section 37(2) of the Family Law Act says that the court must think about:

(e) the child's need for stability, given the child's age and stage of development;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

while section 16(3) of the Divorce Act says that the court must think about:

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child;

The part about the appropriateness of an arrangement that would require the child's guardians to cooperate is really important. Think about it.

Among other things, you will want to avoid:

1. making complaints about your ex in their professional capacity to any regulatory bodies, like the College of Physicians and Surgeons, the Association of Clinical Counsellors, the College of Social Workers or the Law Society;
2. making bogus complaints about your ex to child protection services or the police;
3. reporting your ex to the Canada Revenue Agency, financial institutions or credit rating agencies;
4. making complaints about your ex to their employer;
5. badmouthing your ex in social, recreational or cultural clubs; and,
6. contacting the media about your ex, your relationship, your separation or events following your separation.

Here's a helpful suggestion. Act as if everything you write, say or do will find its way into an affidavit.

The behaviour we've just talked about is the sort of behaviour that will make any court proceedings you're involved in worse, or increase the likelihood that you'll be going to court if court proceedings haven't yet started. A lot of these behaviours have the potential to get you into trouble with the police as well. The Criminal Code has provisions that make all sorts of misbehaviour potential criminal offences, including assault, battery, unlawful confinement, intimidation, threatening, criminal harassment and trespass.

Respecting boundaries, respecting privacy

Part of what's going on when a long-term romantic relationship ends is the redefinition of the personal relationship between the people involved in the romantic relationship. People who were once lovers and confidants must, especially if they have children, find a way to work together in a more business-like relationship with no presumptions of intimacy, trust or altruistic sacrifice. The differences in these two types of relationships are largely about real boundaries and anticipated boundaries.

Of course, problems can come up when our expectations of each other's boundaries don't quite match, and it's sometimes really important to talk about boundaries as a result. Setting and respecting each other's boundaries can be the key to making a difficult parenting relationship work. Here are some of the boundaries I've seen people use:

1. requiring communication by text and email rather than by telephone, or communication by telephone rather than by text or email;
2. setting limits on the length of emails and letters;
3. setting limits on the volume of communication in a given period, or the hours within which communication will be replied to;
4. restricting the subjects that can be discussed;
5. restricting the family members and friends who can be communicated with;
6. fixing the time and place where the children will be exchanged; and,
7. setting consequences for failing to honour boundaries.

Privacy expectations, and the boundaries they imply, are a source of frequent conflict when relationships end. Since it can be hard to respect a former partner's privacy when your relationship has become adversarial, let's spell out some of the more basic rules.

It is not okay to open mail addressed only to your ex. Even when it gets delivered to your home.

It is not okay to hack into your ex's smartphone or your ex's email and social media accounts. Even if you know the password or even if it's easy to guess.

It is not okay to access your ex's voice mail or change or delete messages on your ex's voice mail.

It is not okay to access your ex's financial accounts. Even if your ex gave you permission to do that while you were together.

It is not okay to secretly record your ex's telephone calls. Even if your ex is talking to your children.

It is not okay to make secret video recordings or otherwise surveil your ex. Even if you're trying to gather evidence for court.

It is not okay to steal or make a copy of your ex's diary or personal journal.

Hopefully these rules make obvious sense. However, I include them because they are so often overlooked in the heat of battle. Remember that if you are involved in a court proceeding you have the right to get copies of anything, including any document, that is important to the legal issues in your court proceeding. If there's something important on your ex's phone, for example, you are entitled to ask for a copy of that thing — or apply for a court order that you be given a copy. You don't need to take a self-serve approach. Do it the right way.

Protect yourself from bad behaviour

Just as you can reduce the chances of your car getting stolen by locking its doors when you get out, there are a number of proactive things you can do to protect yourself from your ex's misbehaviour. Once it's clear to you that your relationship is coming to an end, you need to start protecting your privacy. This means taking additional steps to protect your physical privacy — changing the locks for your home, for example, even though your ex has given you your keys back — as well as your electronic privacy. You may need to change the passwords or access privileges for your:

1. smartphone, smartwatch, tablets, computers and other devices;
2. home wifi router and personal hotspots;
3. home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks;
4. wifi-enabled appliances, fixtures and outlets
5. internet, cable and telecommunication service providers;
6. email accounts, social media accounts and gaming accounts;
7. subscription-based accounts, like Netflix, Spotify and Crave; and,
8. business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You'll also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts. It's hard to remember in this electronic age just how many password-protected accounts and services we have, how many of the devices in our home are connected to the internet, and how many personal accounts our friends and family may have access to. You know how Facebook sometimes sends out reminders to check your privacy settings? You need to do that yourself when your relationship is coming to an end. Take a fresh look at everything.

The consequences of bad behaviour

I've already mentioned how the Family Law Act and the Divorce Act require the court to consider "the appropriateness of an arrangement that would require the child's guardians to cooperate" when making decisions about the parenting arrangements that are in the best interests of a child, and how many kinds of misbehaviour are offences under the Criminal Code. There are other potential consequences as well.

Costs

The Supreme Court has the ability to make "costs orders" under Rule 16-1 of the rules of court used in family law disputes. An award of costs is a requirement that one side to a court proceeding pay to the other side a sum of money that compensates the other side for the time and money they had to put into the court proceeding. In general, the successful side is entitled to have their costs paid by the other side, and an award of ordinary costs usually works out to somewhere between a third and half of the money the successful side spent defending or prosecuting their case. An award of special costs, however, is a lot closer to the total amount the successful side spent on their case.

Special costs awards are made to punish a party for how they managed their case. When assessing special costs under Rule 16-1(2)(b), the court is required to consider "the conduct of any party that tended to shorten, or to unnecessarily lengthen, the duration of the family law case."

Misuse of court process

Under section 221(1) of the Family Law Act, the court may make an order stopping someone from making further applications or continuing a court proceeding without first getting permission from a judge if that person:

(a) has made an application that is trivial,

(b) is conducting a proceeding in a manner that is a misuse of the court process, or

(c) is otherwise acting in a manner that frustrates or misuses the court process.

If the court makes this order, it can also make the person:

1. pay the fees and expenses incurred by the other side;
2. pay up to $5,000 to, or for the benefit of, the other side or someone affected by the person's actions; or,
3. pay a fine of up to $5,000.

Conduct orders

Under section 222 of the Family Law Act, the court can make conduct orders if necessary to "manage behaviours that might frustrate the resolution of a family law dispute" or to "misuse of the court process." The conduct orders that are available to the court are listed in sections 223 to 227, and include orders:

1. striking all or part of a claim or an application;
2. requiring someone to attend counselling;
3. restrictring communication between the people involved in a court proceeding; and,
4. requring someone to pay security into court, a cash deposit made to guarantee the person's good behaviour.

Damages

Claims in tort can be made in a court proceeding dealing with family law issues or in a separate proceeding. A "tort" is a kind of claim made when the actions or omissions of one person cause harm to another person. A lot of criminal offences are also torts, like assault and battery. If the tort is proven, the person who was sued may have to pay damages to the person who started the court proceedings. "Damages" are cash awards intended to compensate for pain and suffering, lost wages, medical expenses, and so on. Punitive damages or aggravated damages are cash awards that have the extra purpose of punishing a party for their behaviour.

The sort of torts someone could sue for in the context of the breakdown of a relationship include:

1. assault, battery, and sexual assault;
2. nervous shock and intentional infliction of mental distress;
3. trespass;
4. invasion of privacy and breach of confidence; and,
5. defamation.

Someone might sue for damages for defamation, for example, if the other side posted false information about them on Facebook or a website. Someone might sue for invasion of privacy, breach of confidence or the intentional infliction of mental distress if the other side posted embarassing photos of them, like revenge porn, for example, on Instagram, a pornography provider or another website.

Resources and links

Legislation

• Family Law Act
• Divorce Act

Links

• Legal Services Society’s Family Law website's information page on Separation & Divorce
• Department of Justice's website "Divorce and Separation"
• BC Counsellors by Practice Area
• BC Association of Clinical Counsellors
• Association for Marriage and Family Therapy

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 25 March 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.