Thursday, August 18, 2016

How Your Social Media Footprint Can Backfire on You in Court

There is no denying that we live in a new age of social media, where expressing your inner most thoughts and personal feelings to an online audience is just plain normal.

While it may be tempting to speak out about the trials and tribulations you encounter with your ex spouse following the breakdown of your relationship, airing your frustrations online can cost you a whole lot more than you think …

Canadian Courts have seen the use of social media as evidence in family law proceedings increase dramatically in the past few years:

  • M(MJ) v. D(A), 2008 ABPC 379 -The Court in this case dismissed an application for guardianship for the parties' child that had been brought by the Father, instead granting him very modest access.  This decision was made in part due to the Court's finding that the Father had "demonstrated and displayed publicly (at least to his some 95 "friends" on his Facebook page) his disregard and callous lack of consideration of the mother and his demeaning and dismissive attitude to her". The Father's online activities sadly led the Court to determine that: "... there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child."
  • W(JWA) v. B(A), 2008 NBQB 157 - In this case, the Court admitted Facebook photographs into evidence, which depicted the Mother dancing at a bar, drinking alcohol, and smoking marijuana. In consideration of the totality of evidence, including these photographs, the Court was of the opinion that the Mother lacked the same maturity as the Father, who appeared to be better suited to care for the child's physical, emotional, social and economic needs. This ultimately led tot he Court finding that it was in the child's best interest to reside primarily with the Father.
  • Byram v Byram, [2011] N.B.J. No. 120. - The Mother in this case was granted custody of the parties' children in part as the Court determined that the Father had "spared no effort to vilify the Applicant through Facebook and the internet...." In the circumstances, the Court was not prepared to grant joint custody, noting that this would only be appropriate in cases "where the parents can cooperate and communicate effectively". 
  • Tran v Tran, 2015 ONSC 5838 - In this case, the Mother relied upon Instagram and Facebook posts as evidence that the Father was currently employed and had purchased a BMW instead of providing child support. Though the motion judge was not prepared to impute income to the Father, it was noted that the mother's evidence was strong, and the issue was reserved for trial.

How to Protect Yourself 

While it may seem like common sense, it is a beneficial reminder:

  • To not post and/or tweet anything about or in relation to your ex online that is negative or alludes to negative feelings about them;
  • Do not post anything in relation to any extracurricular/adult activities you may be involved in, or anything that could be misconstrued (In other words, posting that picture of you passed out in a bar surrounded by empty beer bottles may not be the best idea);
  • Use your privacy settings and make your social media private;
  • Do a thorough sweep of your "friends" on social media and delete/block anyone who may have the potential to create drama in relation to your family law matter.
  • If you have a hard time maintaining your composure online, you may want to consider temporarily suspending or even deleting your social media accounts, particularly during the course of your family law litigation;
  • As a rule of thumb, do not post or tweet anything that you would not want a judge to read.

Collecting Evidence

A few things to bear in mind:

Firstly, you cannot deceitfully or illegally collect evidence from a spouse’s social media page. Put simply, you cannot hack your ex's social media page, or make a fake account for the purposes of gaining access to collect evidence.

That being said however, if you do come across some useful information online through the proper channels, it may be possible to rely upon and use this in your litigation.

In many cases your ex’s online presence may confirm things are awry. For example, he/she may post about a job though claiming to be unemployed; post pictures of his/her luxurious yacht vacation, though alleging to have no assets; or post pictures or comments that suggest poor parenting judgment.

Now that you have read this, consider for just a moment what you could possibly stand to gain from ranting about your ex online…The next time you are tempted to post a not-so-friendly tweet about your ex, just imagine the cringe-worthy moment when it is read out loud in open court.

- Simran Bakshi, Associate and Rachel Spence, Law Clerk

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