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Before You Post: The Use of Social Media in Family Law Cases

With so much of our days spent searching, browsing and communicating online, most of us have become very comfortable with sharing private content. Social networking services like Facebook, Twitter and Instagram constantly invite us to share our photos, opinions and feelings with our networking groups. There are always privacy concerns that come with sharing personal content online, but within a family law proceeding these privacy concerns have the ability to significantly impact your family law case. In this blog post, we will provide you with information about how social media posts and electronic communication are used in court and what you can do to limit your exposure.

Social Media Posts and Electronic Communications as Evidence

Many judges have found a party’s social media postings to be admissible as evidence, provided that the material is considered relevant. In a 2013 Ontario case, Young v Young, the court went so far as to find comments made by other individuals on the father’s Facebook post admissible. The father had created a Facebook group to paint himself as a victim and to complain about the mother’s position on custody and access in their court proceeding. The father gained up to 600 Facebook “friends” and supporters, many of whom he did not know. These “friends” chimed in to criticize the mother and some even threatened to harm her. The court found the father’s group and postings to be a “smear campaign” against the mother, which negatively impacted the court’s opinion of the father.

Social media postings are very useful when lawyers and judges are presented with contradictory evidence or credibility issues. For example, social media postings can speak volumes about a person’s income and means. If a person has sworn a Financial Statement indicating that they do not have the income or means to pay support, postings depicting a less-than humble way of life can certainly be used to discredit the person’s financial circumstances as set out in his or her Financial Statement.

Similarly, courts may very well prefer statements made online to statements made in court when the two are contradictory. In V(B) v V(P), a 2011 Ontario case, the father presented the court with the mother’s Twitter feed in which she had admitted to drinking more heavily than she had in her testimony before the court. The court chose to rely on the Twitter feed.

Judges do not take kindly to parents using social media as a platform to campaign against the other parent in custody and access cases. One particular concern is that children may at some point find and be harmed by such posts. Some judges have made Orders preventing parents from disparaging one another on social media, while others have given stern warnings to parents.

Emails and text messages have long been accepted as permissible evidence in court. Your electronic trail with your former spouse is very important in court factually, and for tone and content.

More often than ever, judges are ordering Skype or FaceTime for access with children. Such access should not be recorded but one should be aware that the interaction via Skype or FaceTime may be recorded through a variety of web applications. Be careful that all such communications are positive, presenting your former-spouse in a favourable light and will not be construed as manipulative or coaching the child. Such evidence will backfire on you at court in a custody and access case. Please note that, in Canada, it is legal to record a conversation that you are part of; Skype and FaceTime easily include the other party.

The Do’s and Don’ts

Armed with the knowledge that your social media profile and electronic communications can be used in court, it is important to step back and consider what your social media presence says about you. Here are a few simple suggestions:

  1. Remember that nothing you post online is truly private and that it may be subject to judicial opinion;
  2. Do not make any reference to your family law case on social media;
  3. Do not post disparaging comments about your former spouse;
  4. Discourage family or other individuals from posting disparaging comments about your former spouse;
  5. Be cordial and avoid heated confrontation in all electronic communication with your former spouse (text messaging, emails etc.). Sometimes that will mean waiting a few hours (or days) before responding to your former spouse;
  6. Advise your lawyer if you become aware that your former spouse is sharing disparaging or contradictory postings; and
  7. Advise your lawyer if you have already shared disparaging or contradictory postings.

It is not advisable to destroy any form of electronic or social media communication before separation or before retaining a lawyer because the communication may become relevant at some stage of the proceeding and you may be asked to produce it. The best policy is to avoid texting, emailing or posting anything that you might later regret.

Reference: “Social Media Issues in Family Law”, presented at the 10th Annual Family Law Summit 2016.