Can I Use My Spouse’s Social Media as Evidence in Our Divorce?

Whether it’s on Facebook, Instagram, Twitter (now rebranded as “X”), or any other popular platform, most Canadians use social media to interact with others. Usually it’s to share glimpses of their lives through images and short text updates.

If you’re going through a divorce and want “dirt” on your spouse, it might have occurred to you that social media could be a great source of evidence for this.

This naturally begs the legal question: Can social medial posts and activity be used as evidence against your spouse or former partner, in your Family Law proceeding?

The answer is: It all depends. There is no single rule that applies to all situations. In many Ontario cases the courts have allowed information gleaned from social media to be tendered as evidence – and in many other cases, the courts have not.

Impact on Custody Cases

Often one spouse will try to use social media evidence to try to shine a negative light on the other spouse’s character or judgment. This arises often in custody cases, where one parent posts pictures of their young child on social media – attracting sharp criticism from the other, out of concern for the child’s safety and privacy Courts often see this as a lapse of judgment, calling into question whether the parent has given proper adult consideration to the child’s best interests. This was the scenario in M.J.M. v. A.D. 2008 ABPC 379 (Alta. Prov. Ct.) where the court wrote about the father:

I ordered him to remove the child’s picture from this site and not to post the child’s picture on any other Internet sites. In my opinion, posting her picture like this both puts the child at risk and exposes her to risk.…

In that same case the father’s in-court demeanor was declared to be evasive, dismissive, and confrontational. The court then reviewed his Facebook page for evidence of his character and credibility. It noted one of his posts containing a crude reference to a “porno actor”, another referred to the mother as “crazy”, and a third said denigrating her was “fun” – which the court denounced as being “hardly funny in the unique circumstances of the case.”

Impact on Spousal Support Claims

In a divorce case, a spouse might also tender social media evidence to contradict the other’s spouse’s claims for spousal support. In a case called Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984, the court allowed the husband – over the objections of the wife – to introduce evidence around her use of a Facebook gaming app called “Slotboom”. The wife claimed she played only sporadically, but the in-app charges showed she had logged in 12 times over a 5-hour period, at a cost of over $400. This was pertinent, the court said, to several of the issues in the spouses’ trial, including how much spousal support the wife should get, and whether she was dissipating her own income through various means.

Exposing a Lie

Sometimes social media evidence can simply expose a lie. For example, in a custody case called Jesmer v. Delormier, 2011 ONSC 1750, the mother wrote to the father’s sister by Facebook message, admitting that she lied to the judge on a pertinent matter in her legal dispute with the father. That untruth was brought to the court’s attention, and the parties’ proceedings were re-opened so the court could consider this new evidence.

While these illustrations show that courts will sometimes allow social media evidence, in some scenarios it will be ignored. In Himes v. Himes, [2009] O.J. No. 2787 (S.C.J.), the court refused to allow the transcript of a days-long exchange on Facebook message between the disputing parents to be introduced as evidence in their child access dispute. The court ruled these were tantamount to settlement discussions, which were privileged in law and inadmissible.

How Courts Treat Social Media Evidence

The bottom line is that social media evidence is treated differently from case to case, depending on the context. But one thing remains consistent: No matter where the tendered evidence comes from, Family courts must always consider the same customary legal tests that apply to ANY sort of evidence – including assessing whether the evidence is relevant, authentic, and has probative value, among other tests.

Related articles:

• Facebook, Twitter and Email as Sources of Evidence. Is It Legal?
• The Role of Social Media in Divorce Cases: Navigating the Digital Landscape