When social media takes the stand in family courts

Judges take various approaches to use of the public posts, writes Laurie Pawlitza.

Social media posts, email and texts are now our most common communication tools, so it is not surprising that each of these make frequent appearances in family law courts.

Email and texts, Facebook messages and Instagram posts have replaced the private detectives of old. Most spouses now caught cheating have simply been careless with their passwords. Computers are often recycled through the family and still contain the prior user’s porn favourites and maybe even pictures of a certain family member’s um, member.

What does a court do with the endless stream of text exchanges and posts that are regularly filed by family law litigants? Are they evidence? If so, of what?

Assuming the person admits to writing the email or posting the material, the recipient can use it in court.

However, if there is no admission from the presumed poster that he or she did the posting, or if comments made by third parties are filed with the court, what use does a judge make of those materials?

Judges have taken different approaches to the use of the posts later filed in court proceedings.

In Young v Young, a 2013 Ontario decision, the father used Facebook to chronicle his dissatisfaction about the mother’s position in their custody, access and support litigation. He portrayed himself as the victim and garnered 600 followers. His followers helpfully offered to beat the mother up and said she should be poisoned.

The judge not only granted the wife sole custody, but further ordered that the husband not contact the wife directly, and restrained him from posting any online comments about the wife or children.

In V(B) v V(P), the husband provided the wife’s Twitter feed to the court in which the wife talked about her heavy drinking. Her tweets directly contradicted what she had told an expert who had interviewed the parties and provided a positive report to the court on the wife’s parenting. Given the wife’s tweets, the court entirely disregarded the expert’s favourable report.

Family law litigants have also been caught out by their social media and internet posts in support and property cases.

In Plese v Herjovec, a 2015 case, the wife’s counsel sagely observed that the payer’s income “magically dropped precipitously” after separation.

The husband’s expert reported that his income had plummeted from between $4.5 million and $5.1 million in the two years preceding separation to $1.6 million in the year of separation, with the husband blaming new banking covenants that restricted his ability to pay himself from his corporations.

The husband also took the position that the total value of his companies ranged from $14 million to $19 million. The wife included in her materials an excerpt from Wikipedia reporting the husband’s net worth at $200 million and other social media reports, estimating it at $160 million.

She filed a “getnetworth.net” report that estimated the husband’s net worth at about $100 million and a book the husband had written in which he said he had sold his business in 2000 for $100 million.

The husband shrugged off the wife’s online information, saying that the social media reports served his business well, and that there was no purpose in debating with the media about his net worth. The husband moved to delete these materials from the court file.

The wife said she had filed these reports not as actual proof of the value of the husband’s assets, but to show that there was a “serious reason to doubt the accuracy of evidence and representations.”

The judge did not order the information deleted from the court file, but she specifically stated that she did not rely on the social media evidence in coming to her conclusion about the husband’s income. She found, however, that the husband’s income was $5.1 million and ordered him to pay temporary spousal support of $124,000 per month.

Social media played a significant part in D(P) v D(C), a decision of the New Brunswick Queen’s Bench Court, but unlike the decision in Plese, the court did rely on publicly available social media posts gathered by the wife.

In D(P), prior to separation, the husband, a civil engineer with a career in the construction industry, threatened bankruptcy. After the parties separated, the husband made good on his promise.

However, the publicly available records produced by the wife showed that despite the husband’s bankruptcy, he had incorporated a new construction company. It was owned by his girlfriend, a bookkeeper with no experience in the industry.

Although the husband claimed he was unemployed, the wife produced recent Facebook photos, showing him operating heavy machinery at a construction site. Kijiji searches advertised jobs available at a construction site, with the builder being listed as the girlfriend’s new company.

In the face of the husband’s plea that he was struggling to get out of bankruptcy and back on his feet, the court accepted the wife’s evidence. The judge imputed income to the husband and ordered support accordingly.

But not all family law judges have relied on the onslaught of social media posts from warring spouses as evidence.

In a recent custody case, S.(J.) v M.(M.), when the husband filed the wife’s nude selfies she had sent to her boyfriend, Justice Alex Pazaratz, known for his plainly written decisions, said:

“Do nude pictures of parents help judges decide who should get custody? ….If the objective was to humiliate the mother, undoubtedly the father succeeded. … How does irrelevant and scandalous information help a judge determine the best interests of the child? … Separating parents are already in crisis. Our court process can either make things better or worse. And our success will hinge in part on our ability to address the modern realities of the technology and social media. Between emails, Facebook, Twitter, texts and selfies — privacy and discretion seem a thing of the past. These days there’s no shortage of really embarrassing stuff couples can dredge up against one another — is that really the path we want to encourage?”

Family law litigants are often too caught up in their gotcha moment to focus on whether the posts are relevant to the decisions to be made by the court.

Pazaratz’s warning in S.(J.) reminds spouses that no matter how satisfying it may be to embarrass a former partner, if there is no clear relevance between the posts and the court’s decision, the posts will not be in the court record for long.

(Courts) success will hinge in part on our ability to address the modern realities of the technology and social media.