The Double-Edged Sword that is Social Media

By Sarah Nasser

For better or for worse, social media is here to stay. Facebook, Instagram, LinkedIn, Twitter, Skype, and Snap Chat – the platforms are endless. In the family law context social media has undoubtedly been a useful tool for separated families, when used responsibly. These platforms have allowed parents and children to remain connected and share moments in real time. In fact, this type of communication is now frequently included in Parenting Orders to ensure that children have regular communication with both of their parents when they are not physically with them.

When used irresponsibly, however, social media can have consequences for separated parents. If you believe that your social media posts cannot be used against you, by your former partner, in court proceedings then frankly you are #mistaken. In this blog post, we will provide you with insight into how social media posts and electronic communication have been used in court and what you can do to limit your exposure.

Social Media Posts and Electronic Communication as Evidence

Social media postings have been found to be extremely insightful when lawyers and judges are presented with contradictory evidence or credibility issues and can serve as persuasive evidence in a family law case.

Spousal Support
Social media can provide intimate details of your ex-partners current standard of living, which can be of particular importance in spousal support cases. Because spousal maintenance contemplates a couple’s living style, postings of lavish trips, expensive hobbies, frequent travel, or other indicia of the “highlife” might influence a spousal maintenance obligation.

Legal Fees
Family law and social media collided for a mother in a family law case in 2010 where her posts on social media were used as evidence of her intention to deliberately ‘run up’ the father’s legal costs. As a result she was ordered to pay a portion of the father’s legal costs.

Date of Separation
Facebook photos have also been presented to the court as evidence in a cohabitation case, with the purpose of showing that a couple were still cohabiting, in circumstances where the date of separation was not agreed.

Custody
Photos on Instagram of excessive partying, risky behaviour or poor living conditions have been relied on by the court when determining custody and parental responsibilities.

An apprehension order was granted by the court based on evidence found on Facebook which revealed that the parents’ were opposed to conventional treatment for their two year old child and instead were resorting to feeding their child ‘bleach’ in hopes that it would cure his cancer diagnosis.

There is no shortage of examples of instances where the court has relied on evidence, adduced from a parties’ social media account, when reaching a decision. As such, it is becoming more and more important that people understand the implications of their electronic communications on family law litigation.

Things to consider:

1. Remember that nothing you post online is truly private and that electronic evidence is hard to delete completely once it has been posted online;
2. Do not make any reference to your family law case on social media;
3. Do not post negative comments about your former spouse and discourage your family from doing the same;
4. Consider who is able to see the material you post on social media and apply maximum security settings if needed;
5. Be cordial and avoid confrontation in all electronic communication with your former spouse (text messaging, emails etc.). Sometimes that will mean waiting a few hours (or days) before responding to your former spouse;
6. Advise your lawyer if you become aware that your former spouse is sharing disparaging or contradictory postings or if you have done so.