Social Media Evidence and Divorce in Ontario: A Lawyer’s Guide

By Cheryl Goldhart
Founder and Principal of Goldhart Law and Goldhart Mediation & Arbitration.

1. Introduction

Social media has become deeply entrenched in divorce cases in the digital age. As family lawyers, it is imperative that we leverage these online platforms ethically and legally to effectively advocate for our clients’ interests during this difficult time. This guide examines best practices for properly collecting social media evidence, strategically using it in court, and advising clients on managing their digital footprint.

2. The Ethical Gathering of Social Media Evidence

2.1 Conducting Online Investigations

  • Thoroughly review the public social media profiles of both your client and their spouse for potential evidence. Search for contradictions, hidden truths, and patterns of behavior.
  • Use social media aggregation tools like Social Searcher to comprehensively compile profiles, posts, images, and metadata. This can spotlight incriminating evidence.
  • If necessary, hire a forensic social media examiner to conduct in-depth investigations through sophisticated data scraping and analysis. Their expertise can uncover insights.

2.2 Respecting Privacy Boundaries

  • Do not “friend” or follow your client’s spouse online without consent solely to gain access to restricted content for the case. This could be construed as deceptive.
  • Be mindful of your ethical obligation to protect your client’s sensitive information that may be found online. Handle personal data responsibly.

2.3 Authenticating Online Evidence

  • Verify the authenticity of any social media evidence collected. Carefully examine metadata like timestamps and geotags.
  • Corroborate evidence through witness testimony. Have acquaintances who interacted with the posts verify their legitimacy.
  • Thoroughly document your evidence gathering process to prove adherence to procedural rules. Meticulous records are key.

3. Constructing a Compelling Narrative with Social Media Evidence

3.1 Establishing Patterns of Behavior

  • Organize social media evidence chronologically to illustrate revealing behavioral patterns over time. For example, assemble posts to demonstrate financial irresponsibility, abuse or emotional instability.

3.2 Corroborating Claims Through Experts

  • Bolster your interpretations of social media evidence by having experts analyze it. For example, have a forensic accountant examine posts related to hidden assets.

3.3 Providing Context for Isolated Incidents

  • Understand that a single insensitive social media post does not necessarily make someone an unfit parent. Avoid taking isolated incidents out of context.

3.4 Relating Evidence to Legal Factors

  • Draw clear connections between social media evidence and case-relevant legal factors like parenting ability, abuse, emotional stability, and financial disclosure.

3.5 Humanizing Your Client

  • Leverage positive social media posts and images to highlight your client’s commitment to family, community involvement, hobbies, etc. This can garner sympathy.

3.6 Forensically Analyzing Metadata

  • Scrutinize metadata like edit histories and timestamps to identify inconsistencies or falsified evidence. Retain forensic experts if needed.

4. Mastering Admissibility of Social Media Evidence in Court

4.1 Establishing Relevance

  • Ensure the evidence directly relates to relevant factors like parenting, finances, abuse, or emotional stability. Irrelevant data can derail arguments.

4.2 Overcoming Hearsay Objections

  • Have witnesses who interacted directly with the social media content testify to overcome hearsay challenges.

4.3 Compliance with Procedural Rules

  • Demonstrate your adherence to evidence gathering procedures. Judges scrutinize compliance closely.

4.4 Presenting in Chronological Order

  • Structure your presentation around a compelling timeline of events constructed through dated social media evidence.

4.5 Simplifying Complex Data

  • Break down intricate social media data analysis into easily digestible segments for judges less familiar with these platforms.

5. Preparing Clients to Manage Their Digital Footprint

  • Adjust privacy settings to limit online connections to only trusted friends/family. This prevents snooping.
  • Avoid emotional venting online about the divorce. Such posts could be used against them.
  • Speak respectfully about the spouse online. Abusive language could prompt restraining orders.
  • Delete or archive old social media posts with sensitive content that could be taken out of context.
  • Document harassing messages received online. These could constitute grounds for protections.

6. The Complexities and Challenges of Social Media Evidence

  • Digital evidence, including that from social media, is fluid and changes over time. This dynamic nature poses unique challenges in legal proceedings, requiring specialized approaches for collection and verification.
  • The Canada Evidence Act provides a framework for the admissibility of a broad spectrum of digital evidence, including social media. However, this simplification could potentially lead to ethical dilemmas or even miscarriages of justice.
  • Courts often struggle with the admissibility requirements for social media evidence, leading to inconsistent applications of the rules. This could be particularly relevant in divorce cases where social media evidence might be pivotal.

7. Practical Issues

7.1 Financial Matters in Divorce & Social Media

Hidden Assets: The Social Media Trail

  • The Problem: The common issue of spouses hiding assets during divorce proceedings.
  • Social Media’s Role: How platforms like Facebook, Instagram, Twitter, and LinkedIn can inadvertently reveal hidden assets.
    • Case Example: A spouse claiming financial hardship is caught posting pictures of a new luxury car or exotic vacation.

Lifestyle Inflation: The Digital Contradiction

  • What is Lifestyle Inflation?: How a person’s spending increases as their income grows.
  • The Contradiction: When social media posts contradict claims of financial hardship.
    • Real-life Scenario: A spouse claims inability to pay spousal support but showcases an extravagant lifestyle on Instagram.

Business Ventures: The LinkedIn Paradox

  • LinkedIn as a Financial Tool: How this professional network can provide insights into a spouse’s business ventures.
  • The Paradox: When a spouse claims a decrease in business revenue, yet their LinkedIn boasts about business expansion and success.

Cryptocurrency: The Hidden Frontier

  • Cryptocurrency and Divorce: The challenges of tracing digital assets.
  • Social Media Clues: How discussions or posts about cryptocurrency investments can serve as leads.

7.2 Parenting and Child Decision-Making in Divorce & Social Media

Negative Impact: The Social Media Pitfalls

Social Media Behavior That Can Jeopardize Child Parenting and Decision-Making Claims

  • Inappropriate Content
  • Posting content that raises questions about a parent’s suitability, such as excessive partying or substance abuse, can be detrimental.
  • Public Arguments
  • Engaging in public social media disputes with the other parent can indicate a lack of co-parenting skills, affecting decision-making capabilities.
  • Emotional Manipulation
  • Using social media to manipulate children’s emotions against the other parent could be seen as parental alienation, which Ontario courts take seriously.
  • Real-Life Scenario – Imagine a parent posting a series of tweets blaming the other parent for the family’s breakdown. Such behavior could seriously undermine their claim for significant involvement in parenting and decision-making.

Positive Impact: The Silver Lining

How Responsible Social Media Use Can Support Parenting and Child Decision-Making Claims

  • Family-Focused Posts
  • Sharing moments that emphasize family values and responsible parenting can positively influence a parent’s claim for more involvement.
  • Positive Interactions
  • Publicly praising the other parent or demonstrating cooperative co-parenting can reflect well in court proceedings.
  • Emotional Stability
  • Consistent, positive social media behavior can serve as evidence of emotional stability, a crucial factor in parenting and decision-making arrangements.
  • Real-Life Scenario – Consider a parent who maintains a blog focused on the joys and challenges of parenthood. This could serve as compelling evidence of their commitment to their children’s well-being.

8. Final Thoughts

By leveraging social media ethically, crafting persuasive narratives, overcoming evidentiary hurdles, and advising clients proactively, family lawyers can utilize these digital platforms to advocate powerfully in Ontario divorce cases. Handled properly, social media evidence can shine revealing light on key factors and help achieve optimal case outcomes.

Frequently Asked Questions (FAQs)

Q1: What types of social media platforms are commonly used for evidence in divorce cases?

Answer: While Facebook, Instagram, Twitter, and LinkedIn are the most commonly cited, evidence can also be gathered from lesser-known platforms and even from dating apps.

Q2: What are the ethical boundaries when collecting social media evidence?

Answer: Ethical boundaries include not “friending” someone to gain access to private posts and adhering to applicable guidelines.

Q3: How reliable is social media evidence?

Answer: The reliability of social media evidence can vary and is often subject to scrutiny in court. It’s essential to authenticate any evidence collected from social media platforms.

Q4: Can deleted social media posts still be used as evidence?

Answer: Deleted posts can sometimes be recovered through forensic methods, but the process can be complex and may require expert testimony to be admissible.

Q5: What role do experts play in interpreting social media evidence?

Answer: Experts like forensic accountants or social media examiners can provide deeper insights into the evidence, making it more compelling in court.

Q6: How can social media evidence backfire?

Answer: If improperly collected or presented, social media evidence can be deemed inadmissible. Also, unethical collection methods can lead to legal repercussions.

Q7: What should clients do to protect themselves on social media during a divorce case?

Answer: Clients should adjust privacy settings, be cautious about what they post, and consult their lawyer before making any significant changes to their social media profiles.

Q8: What are some reliable social media scanning software?

Social Searcher, Relativity Trace and X1 Social Discovery are popular choices.

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Cheryl Goldhart is a mediator and arbitrator who can make a difference: 

    • Practicing Family Law Nearly 40 Years: Cheryl brings almost four decades of specialized family law experience to every case.
    • Masters Degree Counselling: Her educational background in Counselling provides a unique mix of compassion and understanding
    • Recognized Expert in Family Law: Certified by the Law Society of Ontario, Cheryl is a proven specialist in family law
    • Accredited Mediator: Recognized by the Ontario Association for Family Mediation, Cheryl is a trusted choice for family law mediation.
    • Designated ADR Expert: Cheryl holds a designation from Ontario’s ADR Institute, reflecting her expertise in arbitration.
    • Numerous Awards: Including the prestigious Ontario Bar Association’s Award for Excellence in Family Law.

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Disclaimer: This blog is intended for informational purposes only and does not constitute legal advice. Consult a legal professional for advice tailored to your specific situation.

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