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Written Notice: what constitutes written notice of a breakup these days?

Guest Blogger Jane Marsden

By Guest Blogger: Jane Marsden, Articled Student, Hart Legal

Any true Sex and the City fan will know that one of the harshest ways to be broken up with is by a Post-it-Note.

When the “Post-it-Note Episode” aired, my friends and I were outraged (yes, we know it’s only a show…).  In this episode, Carrie Bradshaw’s boyfriend, Jack Berger, sneaks out in the middle of the night, leaving a post it note in his place which reads: “I’m sorry. I can’t. Don’t hate me.”

 However, maybe Berger’s breakup method wasn’t so callous after all…

"Perfect for the office romance?"

Although anything short of a face-to-face conversation seems like an incredibly rude and gutless way of breaking up with someone, these days a Post-it-Note almost seems like a personal, or, at the very least, private way of breaking it off.  

While the Post-it-Note Episode aired less than ten years ago, a lot has changed in that short amount of time.  Since then, Facebook, MySpace and Twitter have become, for many, primary means of communication; they have added a whole new dynamic for people trying to navigate relationships and love.

According to my Google search (“facebook breakups”), and stories from friends, it’s all too common.

Social networking sites raise a number of interesting legal issues, including, does a Facebook status change constitute written notice of a breakup?

For example, it is not uncommon for unmarried couples to enter into cohabitation agreements before they start living together, or before they get married.  Couples enter into these agreements for a variety of reasons, such as having children from a previous relationship, wanting to protect assets, or setting out each other’s expectations for the day-to-day workings of the relationship.

A common clause in the cohabitation agreement provides that the parties’ relationship will be deemed to have ended on the first of the following events to occur:

  1. the parties live separate and apart as a result of a breakdown in the relationship for a continuous period of more than 90 days;
  2. the date a court grants an order recognizing that the parties have no reasonable prospect of reconciliation with each other; or
  3. the date a party delivers a written notice to the other that the relationship is terminated.

So the question is: is it enough for your partner to change his or her Facebook status from “in a relationship” to “single” for this to constitute “written notice” that the relationship has come to an end?

Although Canadian courts have yet to explore this specific issue, we do know that social networking sites have come up in matrimonial cases; usually around evidentiary issues.  In one recent case, W.M.W. and K.C.M. v. J.W. and M.M., Judge T.S. Woods considers Facebook evidence to show the nature of  a relationship:

 I must acknowledge in this connection that there is evidence to show that Biological Mother JW is in a new, live-in relationship with the individual to whom I have referred as “Boyfriend JG”.  However, the evidence also shows that that relationship has had its volatile moments.  A printout of messages published on Biological Mother JW’s Facebook page reveals that as recently as October 30-31 of this year (shortly before the hearing), she considered that Boyfriend JG had unceremoniously “dumped” her. 

The Guardian cited a 2010 survey by the American Academy of Matrimonial Lawyers which states that four out of five lawyers have reported that increasingly, divorce cases have relied on evidence taken from social networking sites.

It seems to be only a matter of time then before the courts will be called upon to decide whether someone’s change of Facebook status change is enough to constitute written notice that the relationship is over.

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