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In this video blog, I will be discussing the recent increase in the use of electronically stored information as evidence in family law proceedings. Currently, a query in a legal research engine for the name of a social networking site such as ‘Facebook’ returns 126 search results within reported Canadian family law cases. While social media sites have an undeniable utility as they allow for people to stay connected despite physical distance, they also pose a problem when there is need to disconnect from relationships. As such, it is becoming more and more important that people understand the implications of their electronic communications, including, but not limited to e-mail, online chats, Facebook and Twitter, on family law litigation that they may become party to in the future.
In the 1998 case of M. (J.) v. D. (A.) the provincial court of Alberta gave substantial weight to the respondent mother’s evidence of the father’s inappropriate Facebook posts in making their determination with respect to the custody and access of the child. In this case, the respondent mother had sole custody of the child at the time that the father made an application for the custody of and access to the child. The mother opposed the claim on the basis that the father was incapable of making decisions regarding the child that were in the child’s best interest. In support of this position, the mother presented as evidence before the court posts that the father had made on his Facebook homepage. The father had posted obscene and crude remarks regarding the mother on his page and this information was accessible by his 95 “friends” on Facebook, one of which was his twelve-year-old daughter. The father had thereby exposed the child his resentment and attitude towards the mother and unnecessarily exposed her to inappropriate materials and parental conflict. The father’s behaviour raised doubt with respect to whether the father could protect the safety of the child. His actions did not speak to an adult consideration of the child’s best interests and were ultimately weighed against the father in the determination of this matter.
As a result of the growing use of Facebook and other social media sites as documentary evidence in numerous recent Ontario family law cases, social media users with pending court matters should refrain from posting information relating to their matter. Further parties to a family proceeding should consider implementing maximum security settings on their site profiles in an effort to the potential of personal information from being used against them in court.
At our firm, it is our policy to educate and protect our client from any potential negative liability. To that end, we warn our clients of the dangers of social networking during a separation or divorce action and ask that our clients refrain from succumbing to the urge to vent their frustrations arising from their family matter on such communication forums. After all, you never know how something as simple as a status update can become evidence against you in the family court.