Text Messages and Social Media in Divorce Proceedings in Canada

We live in a world that has been transformed by advances in electronics within living memory. In many ways, we are still adjusting to the differences that social media sites and text messaging have made to the way we socialize and communicate. Although these changes may feel so new that it’s hard to believe that Twitter, email and the like can be accepted as evidence in court, the fact is that they can be used as sources of evidence in divorce cases.

In some ways, electronic evidence have even made judges’ and lawyers’ jobs easier. Before the digital revolution, a lot of important evidence was lost because words reflective of character were spoken in person or over the phone. Now, those same words are shared in the form of text messages or emails. Notoriously, digital communication is often more impulsive and uncensored than voice communication. We may think of our electronic devices as conveniences, but they preserve records of our private communications in unprecedented ways and make it tougher when it comes to family law issues.

Think Twice Before Pressing “Send”

Before sending that romantic text to an extramarital lover, consider how it might be used in court.

Instant messaging apps and social media platforms such as text messages, Facebook, Instagram, Tik Tok, Discord, WhatsApp and emails can have an impact in Ontario family law cases. Text messages are frequently used as evidence in family law disputes, including divorce and child custody cases, to demonstrate threats, behavior towards one another, or admissions of damaging facts.

A Trail of Information

It always has been difficult to prove individual statements in a court of law. Hearsay rules and reliability of witnesses make perfect recollection an impossibility that allows lawyers to fashion witness statements as either illegal evidence or completely inaccurate.

That was when people communicated by speaking in person or over the telephone. Now, many people rely on text messages as a primary source of daily interaction and communication. Without thinking about it, they may text a sensitive or inappropriate message that generates a stored record on a server somewhere.

Users may think of texts as private interactions, but each message can be exposed publicly in court during a messy divorce if they are obtained legally and presented in accordance with the rules of court.

False Expectations of Privacy

Text messages, social media posts, and other communications are intended for the user and designated recipients. Many users assume that these forms of messaging are private and protected.

Mobile phone usage and social media interaction require legal adaptations that suit changing technologies and the manner in which people exchange information. Legislators and courts have made a diligent effort to keep pace with the rapidly changing social media landscape; there are still loopholes that have not been addressed.

In most cases where there is no guidance from the federal, provincial, or territorial government, and no precedential case law exists, courts must forge new legal principles. Many legal decisions surrounding the admission of text/SMS and social media messages are evolving by the day in courtrooms across Canada.

For the time being, there is a general and growing consensus that text/SMS messages can be admissible during divorce proceedings and that there is no expectation of privacy once the message is distributed.

Unlike a telephone conversation where a caller may not know the conversation is being recorded, a person who sends a text does so with the knowledge that a written record of the communication exists. The very nature of texting makes it possible that conversations between two people — a romantic and adulterous couple perhaps — can be saved and redistributed.

Obtain Text/SMS Records Legally

While text messages may be admissible evidence during a divorce proceeding, a family court will likely consider both the content of the messages and how they were obtained. In many instances, text messages alone will not suffice to prove adultery, but they may bolster claims of illicit behaviour, a propensity to infidelity, and other acts offensive to the marriage and giving rise to a claim for divorce.

Text messages may be presented to a court by:

• a party with legal access preparing and submitting a transcript with a sworn affidavit
• one of the parties to the divorce requesting a subpoena to produce the text messages

It is important that a party seeking to present text message evidence not resort to illegal means to obtain the communications. A court, without hesitations, will reject any evidence that is procured by theft, fabrication, or other illicit means that violate the opposing party’s rights or the rights of the device’s owner.

Until now, most courts have been willing to consider that text transcripts are legitimate and accurate representations of what would be found upon further investigation. In time, however, new court rules may regulate how text/SMS messages are entered into evidence to ensure their veracity.

Uses of Electronic Evidence

Since it is not necessary in Canadian divorce proceedings to prove that your spouse did anything wrong in order to get a divorce, electronic evidence is a matter of concern mainly in custody disputes. Such evidence can be used in many ways. For example, it may be used as:

• Evidence regarding character (e.g. with relevance to parenting ability)
• Evidence regarding credibility

This means that the content of your text messages, emails or Facebook posts can be used as evidence that you are not an appropriate custodial parent. Digital evidence can also affect requests for joint custody; whether you are granted access; or the type of access you are granted. Examples of content that could be used as evidence in these ways include:

• Text messages threatening the other parent
• An email to a friend about your gambling
• A Facebook photo showing you drinking alcohol
• Disrespectful tweets about the other parent

The bottom line is that when you are going through a divorce you must be very conscious of how you are using social media and electronic communications. Assume that you will have to defend in court anything you post, text, tweet or email, and realize that it can be taken out of context.

Limitations

Of course, there are limitations on the use of social media and electronic communications as evidence. Electronic evidence must be:

• Authentic
• Original
• Reliable

To prove or challenge these things, it may be necessary to use a forensic or computer law expert.

In addition, electronic evidence may not be obtained unlawfully. Hacking email accounts or phones is out. Not only will evidence collected in this way likely be inadmissible. Spying to obtain evidence in a divorce case may result in having to pay damages for privacy invasion, and in some instances may constitute a criminal offence.

Avoid Social Media Dangers

It important to recognize that online information can greatly assist your matter (gathering evidence etc.), but it can also be used against you. You must remember the following:

• Although there are privacy settings on social media sites, there are no real secrets on these sites.  It is important to limit the information on the site and to increase your privacy settings;
  Some people do not realize that everything they say and do on Facebook or any other social media site, ” can and will be used against them in a court of law”.  “Don’t be stupid on social media”.  Comments or photos online can be used to show poor parenting, lack of judgment, capacity to work, substance abuse, etc.  It is important to be very discreet in your online presence at all times;
• Dont communicate with your lawyer on Facebook or Twitter etc.  You cannot assume that these messages are private.  It is always best to open a new email account that you will use only to communicate with your lawyer;
• Electronic Stored Evidence, including posts on social networking sites, can be relevant in family law matters.  A client must realize that he/she cannot delete relevant documentation or they may be found to be destroying evidence.

We have to be aware of that the information became more accessible during the past decade.  It is important to remember that anything you “say or do can and will be used against you in a court of law”.

A Real Case

To give an example from a guardianship case, in the 2008 Alberta case M.J.M. v. A.D., the father’s Facebook activity was used as evidence of his character and credibility. The court commented about this evidence, “The father’s actions around his Facebook link are indicative of his lack of respect for the mother yet asks [sic] that decision-making be shared.” In other words, the father’s use of his Facebook page was taken by the court as evidence that he would not be able to share decision-making with the mother. The court concluded, “I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child.”

Get Answers to All Your Divorce Questions

Whether you are trying to obtain texts, or worried your spouse may be spying on yours, the time to talk to a qualified divorce attorney in Toronto is now. Until you do, stop texting, save your messages, and find out how to protect your rights today.

Contact Fine & Associates for a free consultation.