Social Media in Family Law Matters

BY SIMRAN BAKSHI and RACHEL SPENCE

How much is it worth to bash your spouse on social media? 

These days, the cost could be more than you might think.

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

• Westhaver v. Howard, 2007 NSSC 357, the Nova Scotia Supreme Court (Family Division) considered crude and homophobic comments posted by a father on social media and found those comments to be evidence of the father's poor judgment, ultimately denying the father access to the child;
• M(MJ) v. D(A), 2008 ABPC 379, the Alberta Provincial Court dismissed a father's application for guardianship of his child and ordered modest access, relying in part on the fact 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 that the father had simultaneously posted photos of the child online, thereby linking "the child to his rancour... and, despite her young age, also exposed her to adult-appropriate matters";
• W(JWA) v. B(A), 2008 NBQB 157, the New Brunswick Court of Queen's Bench (Family Division) admitted into evidence photographs found online that showed the mother dancing at a bar, drinking alcohol and smoking marijuana. This formed part of the basis for finding that it was in the child's best interest to reside primarily with the father; and
• Byram v. Byram, 2011 NBQB 80, the New Brunswick Court of Queen's Bench (Family Division) considered the vilifying comments made online by the father about the mother in granting the mother sole custody. 

How to Protect Yourself

While most of this may be common sense, this may nonetheless be a beneficial reminder:

• Never post / tweet anything about or in relation to your ex online that is negative or alludes to negative feelings about him or her;
• Do not post anything in relation to any extracurricular / adult activities you may be involved in, or anything that could be misconstrued ie.: partying, alcohol, drugs;
• 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.
• Do not post/tweet anything that you would  not want a judge to read and,
• For those who have a very hard time controlling themselves in moments of volatility, we suggest deleting your social media completely or limiting it.

Collecting Evidence

You cannot deceitfully or illegally collect evidence from a spouse’s social media page. Put simply, you cannot hack his or her Pinterest or Facebook pages or make a fake account, get accepted as a friend and collect evidence. 

However, if one of your former partner's legitimate online friends shares posts with you that relate to your ex, you likely may use them if they pass the legal test of relevance.

In many cases your ex’s online presence may confirm things are not as you have been told. For example, a former partner who: 

• Posts about a job while claiming in Court documents to be unemployed 
• Posted photos of luxurious vacations while claiming to have no assets
• Posts pictures or video disclosing inappropriate behaviour around the children, 
• Posts rants about you, or rudely alludes to you or your character or your parenting skills.

If you suspect that your ex or someone close to him or her may be posting something like this online, it is in your best interest to do a thorough but lawful inspection of his or her online presence and maintain diligent records and screenshots to provide to your lawyer.

Now that you’ve taken the time to read this, consider the following for a moment.

What you have to gain by posting anything negative in relation to your ex online?  

The answer is:  Nothing.  

It will not assist you legally in any way and could instead, potentially harm your case.

So don't do it.

If you are involved or could become involved in any family law dispute, have fun online but...

Always practice safe social (media).

- Simran Bakshi, Lawyer & Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net