Earlier this year, an Ontario court ordered limits on the types of social media posts that a father could make following a separation and a contentious access and custody dispute.

What Happened?

Following their separation, the couple at issue (who had two children, aged 8 and 10) had worked though the majority of issues on access and custody and resolved them via a settlement agreement.

Outstanding issues included whether the parties were obligated to provide one another with an updated phone number, and whether the parties were able to post photos and information about their children on social media.

Updated Phone Number

The father indicated, during the motion hearing, that he was prepared to provide the mother with a phone number as long as her communications were limited to emergencies regarding their children.

The court ordered that, on consent, each party was to provide a phone number to the other so long as their communications were of an urgent nature and related to the children.

Social Media

The mother claimed, among other things, that the father had:

• Blocked her on social media;
• Called her vulgar names and repeatedly attacked her on social media;
• Used social media to broadcast and discuss his ongoing dispute with the mother concerning access to the children;
• Used social media to “crowdfund” his legal costs and been very critical of the mother in the process.

The father argued that he wished to continue to use Facebook as mean for his family to “get to know the children”.

The court noted that evidence did establish the father’s disparaging comments and criticism of the mother and that the father “has used social media to broadcast and discuss his ongoing dispute with [the mother] regarding access to the children”. The court further noted that associating the children with such a public legal battle was not in their best interests.

The court concluded that:

It would seem reasonable to the Court that [the father] be allowed to publish photographs and comment regarding the children provided there is no mention of any legal dispute issues relating to the children and/or derogatory comments made against [the mother]. The Court will accordingly make a final order reflecting these terms.

The court ordered:

[The father] may post photographs of the children on social media such as Facebook. However, he shall not post any comments regarding legal disputes, access issues to the children and/or derogatory comments made against [the mother].

Lessons Learned

Social media has become a pervasive part of modern life, with many people regularly broadcasting very personal details about their day to day lives on various social media platforms such as Facebook, Instagram, Twitter and others.

While it may seem harmless to update family members, friends, and other followers about yourself and about your thoughts on certain matters, those who are going through a separation or divorce should be wary of what they post on social media.

More and more often, social media posts are used during family law proceedings for a wide range of reasons, including calling into question a partner or parent’s credibility, or attempting to embarrass or otherwise maliciously affect someone.

From a personal and family perspective, it can significantly add to an already tense and emotional situation for children to see their parents disparage one another online. Courts may be unlikely to favourably view parents who unduly use social media to publicly air their feelings about their separation or divorce.

Other judges have commented on the use of social media by warring parents, noting, among other things:

Between e-mails, 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 — if that’s really the path we want to encourage [emphasis added].

Ultimately, former spouses should be careful about what they post on social media (especially if they are also parents). At the end of the day, a good rule of thumb is that you should not post anything that you would be embarrassed to have to speak about or be questioned about in court one day.

Family law issues can be highly stressful and very emotional. If you are considering separation or divorce, or have already started going through the process, consulting an experienced, compassionate family lawyer early in the process and regularly checking in with them is your best course of action. As the oldest independent law firm in Waterloo region, and one of the oldest in the province, Duncan, Linton LLP has been providing clear, effective and strategic legal advice to clients for over a century. Call us at (519) 886-3340 or contact us online for a consultation.