In recent years, Canadian Courts have allowed postings on social media sites to be used as evidence in Family Law matters. The most predominant source of these postings has been from the social media site, Facebook. Social media sites are often one of the first sources the opposing party will look to in an effort to find incriminating evidence. Anything you post on Facebook may be used against you in your Family Law matter.
Often times, people resort to Facebook to air their dirty laundry, to vent about their ex-partner, or to make their friends aware of their current situation. This nature of posts often leads to negative consequences when revealed in court. Though, initially the posts are intended for friends, they can be used in a manner you did not anticipate.
The best advice one could offer is to think twice before posting any message concerning your Family Law matter or anything about your ex-partner. The best remedy in this situation is to cool down before resorting to Facebook to let the world know how you are feeling.
Sometimes individuals post items to Facebook under the impression that the other side will not get wind of the post as it was only made available to their “friends.” What they fail to realize is that often times these friends are also friends or acquaintances of the opposing party. Once they see the post they immediately inform the other party of the posting and then it gets into the courts.
Another ill advised assumption that is often made is that one thinks their private message to another would never be used against them. This was the case in Jesmer v. Delormier, 2011 ONSC 1750, where a private message between two third parties was used against the father to terminate an access order which prevented him from having access to his son. In that case, the father had been awarded access, a decision that was later reversed when the court became aware of private Facebook message between the father’s ex-girlfriend and the child’s aunt (mother’s sister). The ex-girlfriend wrote to the aunt informing her that she had lied to the court when testifying. The ex-girlfriend really did not think the father should be allowed access to the child, despite testifying to the contrary at trial. She stated that she does not think the father is fit to be around children without proper supervision.
Sometimes the damaging post wasn’t even posted by the party against whom it is used in court. This most often occurs when someone else tags them in a less than flattering picture. You should always be aware of what can be posted on your Facebook page. The best way to do this is to restrict who can post and what can be posted on your page. Increasing your privacy settings allows you to limit what can be posted on your wall, or at the very least, approve the posting before it is made public. It also restricts people who are not your friends from viewing the content of your Facebook account. You may want to consider temporarily suspending your Facebook account until your Family Law matter has concluded. This will ensure that you or one of your friends do not make any ill informed postings that may come back to haunt you.
Facebook posts are most often used as evidence in custody applications and applications to vary child and spousal support. In custody applications, Facbook evidence is used to prove that one of the parents does not act in the best interest of the child or is unsuited to care for the child. Photos of the claimant on an exotic vacation or posing with their new vehicle are often used to demonstrate the claimant does have the means to pay support so the current support levels should not be varied.
Below are some Nova Scotia Family Law cases where Facebook evidence has been used by one of the parties:
E.S.M v. J.B.B, 2011 NSFC 21
This was a mobility case where the mother, who had primary care of the party’s two year old child, commenced an application for her and her son to move to Alberta to be with her new boyfriend. The boy’s father had regular parenting time with the child and provided the court with Facebook photos the mother posted on her account. These photos included one where the mother was pictured with a man and both were topless. Other photos demonstrated that the child was not properly supervised while in the mother’s care. There was also a vulgar comment posted to the mother’s account, which she claimed was done by a friend who had access to her account.
The judge not only denied the application for the move, but also granted primary care to the father. The judge’s reason for doing so is that the photos are evidence that the mother has exercised judgment that is not in the best interest of the child. The judge also stated that even if the mother was not the author of the vulgar comment, it does raise an issue about the character of her friends.
L.E.S. v. M.J.S., 2014 NSSC 34
In a review hearing related to the Respondent’s supervised access to his children, the children’s mother, used as evidence, a photo from the father’s Facebook account showing him smoking marijuana. The court allowed this photo as evidence and used it in deciding to continue the supervised access.
WESTHAVER V. HOWARD, 2007 NSSC 357
Application by the biological father for access to a child he had not seen since the child was 10 months old. The child is now four. The court relied on evidence of poor judgment on the father’s behalf, such as Facebook posts containing homophobic and crude remarks. Access was denied.
Wetzel v. O’Quinn, 2013 NSSC 301
This was an application for various forms of relief pursuant to the Divorce Act. The parties were separated and their main dispute concerned the custody of the couple’s four children. A Facebook message sent from the mother to the eldest child was used in evidence to support the father’s position. The message sated that the child’s father is a loser and cannot be trusted. The court used this as evidence to demonstrate that the mother could not properly discipline the child as she was not disciplined herself. It was also in violation of a court order that the parties not discuss their divorce with their children. Further, the judge used the message to demonstrate that the father was a better role model for the children. Primary care was awarded to father.
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