Social Media: What You Post Can Be Used in Court

social media apps on mobile

The exponential growth of social media sites including Facebook, Twitter, and Instagram over the past two decades shows no signs of slowing in Canada. Particularly during the last two years, when in-person social contact has been curtailed (at some times, even prohibited) due to COVID-19 pandemic mitigation measures, Canadians have increasingly turned to social media to maintain connections to friends, family and community.

With an increase in social media use, problems with users oversharing and displaying unchecked anger in social media postings have also grown. It is especially important for parties engaged in contentious family law litigation to be wise and to use caution in their social media activity. As the National Cybersecurity Alliance points out, “once posted, always posted.”

In making decisions, courts can and do consider evidence about how parties speak about each other, their children, and other issues on social media. What takes only a few minutes to type and post can have long-term, far-reaching implications for families involved in the legal system.

Facebook

In the 2019 case E.O. v. O.E., the parties had a tumultuous relationship that involved violence and substance use on the part of the father prior to their 2008 separation, when their son was one year old. The mother had been granted sole custody (now called “decision-making responsibility”) of the child, while the father was entitled to access (now “parenting time”) to the child on reasonable notice. By 2019, the father had only seen the child once, approximately seven years earlier. He applied to the court for an order for access. The mother opposed access, seeking a restraining order and child support.

Among the Ontario Court of Justice’s considerations in dismissing the father’s motion and in issuing the restraining order and denial of further access to the child by the father were several Facebook posts made by the father. He suggested that the mother “buy enough caskets for your young and old,” he called her an “idiot,” and he made a number of other posts implying that there were evil spirits at work and that his son was being victimized by the witchcraft practised by the mother and her family. The father also sent Facebook messages to the mother’s brother expressing his intention to disgrace her.

The father’s behaviour had significant evidentiary weight in the judge’s findings that he should no longer have access to the child:

… This is further supported in that the evidence has not convinced me that O.E. has made the positive changes in his life he claims. He provided no independent evidence to establish that he has made changes. He continues to exhibit harassing and threatening behaviour in his texts and Facebook posts and denied the extent of his criminal past and provided few particulars or confirmation of his recent police involvement and criminal charges.

It is also notable that the final order made in the father’s motion included a direction to the mother that she avoid exposing the child to the father’s social media posts.

Twitter

 In another highly contentious family law case, B.V. v. P.V., the Ontario Superior Court took note of Twitter posts that the mother had made in observing that she had been less than forthcoming about her use of alcohol. Both parties were seeking sole custody of the parties’ two children, who had been primarily resident with the mother post-separation. The mother’s application was ultimately successful, the deciding factor being the fact that a change in primary residence would be detrimental to the educational progress of one of the children, as he would have to change schools. However, the judge was critical of the mother’s lack of honesty in understating her use of alcohol while the children were in her care, particularly where she had alleged but failed to establish that the father’s alcohol consumption was problematic:

The respondent’s allegations regarding the applicant’s consumption of alcohol are also not a significant factor in the consideration of the appropriate custody and access order… As noted above, based upon the respondent’s Twitter postings, it is clear that she engages in a pattern of excessive consumption of alcohol. The Twitter postings reference her making inappropriate phone calls while intoxicated and being hung over.

Instagram

In Bedzow-Weisleder v. Weisleder, the parties separated after a marriage of over 20 years. Only one of their three children remained a minor. Contentious issues included parenting arrangements for the youngest child, valuation and division of property, child and spousal support, and whether there was a need to restrain the manner of communications between the mother and the children, the father, and his new partner. As the Ontario Superior Court judge noted, the mother’s inability to moderate her behaviour online was a contributing cause to the problems she was having with her children:

There was significant evidence before me of Ms. Bedzow’s emails and text messages, principally to Dr. Weisleder, but also to the children. In addition, there was significant evidence before me of Ms. Bedzow’s Instagram posts. The emails, texts and Instagram posts entered into evidence were harassing, abusive, vulgar, and hateful. Many of these were sent in the latter part of 2017 when the conflict in this litigation was exceedingly high.

The judge noted that the mother had been using her Instagram account to post negative comments about the father and his new partner and that, according to the father’s evidence, the children had been embarrassed by her behaviour. An order restraining the mother from directing Instagram posts to the father and the minor child was issued. While the court lacked authority to make such an order with respect to the father’s new partner in the absence of evidence that the posts caused her to fear for her psychological safety, the court gave the mother some advice:

I urge Ms. Bedzow to stop directing Instagram posts at B.H. If Ms. Bedzow wishes to rebuild her relationship with her children, as she states she does, her emotional self-regulation will need to improve and she will need to move on with her life. Instagram posts directed at B.H. will work against this goal.

Exercise Caution and Judgment Before Posting Online

The judge in the Bedzow-Weisleder v. Weisleder case echoed the sentiments of many experts in the healthy use of social media. It is particularly important for parties engaged in any type of litigation to be diligent in making sure they do not let their emotions get the better of them while online. The Conversation Canada, an online source of news and opinion from members of the country’s research and academic communities, recommends using the “SPACE to THINK” approach when making social media posts:

SPACE – Take these steps:

●       Stop: Type it, but don’t post it.

●       Pause: Wait for at least an hour, preferably sleep on it.

●       Assess: THINK about what you’ve typed (see questions below)

●       Confirm: Check with someone else to see what they THINK.

●       Execute: If it passed the test, click “send”. Otherwise, delete it.

THINK – Ask yourself these questions:

●       T: Is it true?

●       H: Is it hurtful?

●       I: Is it illegal?

●       N: Is it necessary?

●       K: Is it kind?

Remembering the golden rule – whether you would appreciate someone posting about or communicating with you in the way you might be about to – is important to everyone but vital for families going through any kind of legal proceeding.

Contact Bortolussi Family Law in Vaughan for Reliable Family Law Advice

The experienced team at Bortolussi Family Law helps clients navigate family law disputes and provides strategic legal solutions to minimize conflict. Located in Vaughan, we represent clients in Mississauga, Brampton, Caledon, Whitchurch-Stouffville, Woodbridge, Maple, Kleinburg, Concord, Bolton, Nobleton, Markham, Etobicoke, and all points in between. To find out how we can help with your family law matter, contact us at 416-987-3300 or reach out online to schedule a consultation.

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