Reasonable Doubt: Separating or divorcing? Your social-media posts can and will be used against you

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      If you pay any attention to the news, it seems like politicians and celebrities are getting in trouble for their social-media posts on a daily basis.

      Social media has become such a powerful tool that it has even become a means of conducting foreign relations. As Canadians, we are used to seeing Twitter diplomacy employed regularly by our neighbours directly to the south, but with the current diplomatic crisis between Canada and Saudi Arabia, we are witnessing the effects of Twitter diplomacy for ourselves.

      Social media has become a large presence in our lives, so it is no surprise that it has also become a significant player in family-law cases, whether the disagreement is about children or financial issues like child and spousal support.

      Firstly, legal proceedings aside, social-media posts often fuel disagreements between exes. For example: when one person criticizes their ex on Twitter or when a parent posts a video on Facebook of their child doing something the other parent does not approve of. People have different parenting styles, and sometimes “out of sight, out of mind” is good way to avoid conflict. If one parent is constantly posting about their child and not being careful about what they post, a disagreement will inevitably follow.

      Many people going through a separation or divorce do not realize that their social-media posts can be used as evidence in court. The posts are so quickly and easily collected, and that is as simple as one party taking a screenshot of a post on their phone and sending it to their lawyer. During the past 10 years, there have been numerous family-law cases across Canada where social-media posts were a key piece of evidence considered by the court in making its decision against the careless individual who posted it.

      In child-custody and guardianship cases, such posts are often used to show one parent’s poor judgement in parenting, inability to respect and coparent with the other parent, or inappropriate lifestyle while caring for children. In my experience as a family lawyer, I have seen evidence—in my own cases as well as other lawyers’ cases—such as Facebook pictures of a child holding his father’s handgun, pictures of a parent smoking marijuana and drinking with a child nearby, or a young child not wearing a lifejacket on a boat.

      Often, tweets or Facebook comments where one parent makes extremely disparaging and vulgar remarks about the other parent are included as evidence. As you can imagine, this all paints a very unflattering picture of that parent to the judge.

      In cases involving child support or spousal support, where the parties’ incomes and standard of living are key considerations, social-media posts are often used to show that one party has not been forthright about their financial situation. The posts may be pictures of one party on a lavish vacation, driving a luxury vehicle, or posting comments about a new job.

      Professional social-media platforms like LinkedIn are also often used to show one party’s employment history and possible income-earning potential. This type of evidence can be particularly damaging or useful when parties disagree on that party’s income earning for the purposes of determining child or spousal support. Evidently, social-media posts can really damage a person’s credibility in court when it contradicts other evidence.  

      Given how often social-media issues are discussed in our society and used as evidence in family-law cases, it still astonishes me how often I come across careless posts by parties involved in family-law proceedings. Some people seem to think that they can simply delete the posts at a later date after they have vented their feelings or garnered enough “likes” or sympathy comments or they have a false sense of security because they have set their privacy setting to “high”. It only takes one second for someone to take a screen shot and keep it forever. No matter how high your privacy setting is, most people have more than 50 to 100 people following them on Facebook, Instagram, etcetera, which certainly makes any social-media account not “private” in any way.

      My rule for my clients is, “Do not post anything you do not want presented before a judge—and when in doubt, do not post.” Although there are many benefits to social-media use that we should all continue to enjoy, using common sense in deciding what to post can go a long way in avoiding unnecessary headaches down the road.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Nancy Chen is a family lawyer at Catalyst Legal LLP and can be reached here. If you have topics that you’d like her to cover or if you have a general question for a lawyer, you are welcome to contact her.