When Sarah Boulby tells clients going through a divorce or locked in a custody battle that their texts and social media posts might be put under a microscope, she usually gets one of two responses.
Often, people are “mortified,” particularly in the face of any out-of-character messages, the Toronto family and divorce lawyer said.
At other times, they come armed with reams of texts and other communications they believe demonstrate their former partner’s misbehaviour, she said.
“They say, ‘See, you can see what she’s doing or he’s doing,”‘ said Boulby, a partner at Boulby Weinberg LLP.
“It can be a minefield, because it’s no longer he said, she said, there’s actual concrete evidence that can be recovered, digital evidence.”
As people’s lives and relationships have increasingly shifted online over more than a decade, digital records such as text messages, emails and Instagram posts have become a mainstay of divorce and family cases, to the point where Ontario courts have had to impose limits on how much can be filed, experts say.
Many unprepared for messages to resurface in court
Still, many people are unprepared for how their messages and posts may resurface in court, said Stephanie Di Federico, a family lawyer with Bortolussi Family Law in Vaughan, Ont.
Messages sent in the heat of the moment may later determine a key aspect of their case, said Di Federico, who encourages people undergoing separation to limit their texting and social media use.
“Their emotions will get the best of them, and they will post and they will text something, and once that’s sent, you can’t undo it,” she said.
“Parties oftentimes have very different narratives about their relationship, about the parenting issues, or about some of the other important issues in their case, and these messages are a way to illustrate or … to prove or to help support one person’s position.”
Take, for example, a situation where one parent is arguing the other should have less parental time because of substance abuse, she said. The other parent may deny it, but if their social media paints a different picture, “that’s going to be impactful, not only with respect to that particular issue … but also it has now negatively impacted that person’s credibility to the judge,” she said.
Text messages about salary bonuses and posts about lavish vacations can also be used to challenge claims about income in a child-support dispute, she cited as another example.
Sometimes the tone of the messages between exes is as important as the content, and can help gauge their ability to co-parent, said Laura Paris, an associate at Shulman & Partners LLP.
“If you’re able to demonstrate that one person is incapable of making reasonable decisions, or every time you’re trying to make a decision, they use it as an opportunity to, let’s say, discuss the relationship … you can utilize those text messages in your court case to demonstrate that they cannot co-parent effectively,” she said.
That can be used to seek sole decision-making ability, for example, she said.
Often, it’s the communications that take place after a couple has separated that take centre stage, but messages exchanged in the relationship’s prime can also play a role, Paris said.
A judge likely won’t give much weight to “a heated conversation you had five years prior to separation,” but texts involving financial information may still be relevant, she said.
Boulby said digital evidence from earlier in the relationship can sometimes help if one parent argues the other wasn’t very involved in their child’s day-to-day life — for example, if there are “thousands of posts” showing that parent at sports games and school events, or texts about scheduling health-care appointments that indicate they were, in fact, actively involved.
At times, there can be enormous amounts of digital evidence, especially since each message needs to be presented in context, she said. That can cause delays or make legal costs balloon as lawyers pore over heaps of records to whittle them down to what’s necessary, she said.
Ontario limits digital records in court
Ontario courts have pushed back in recent years by restricting how much of this kind of evidence can be introduced, she noted.
A provincial practice direction for Ontario’s family courts specifies that litigations “shall not include voluminous texts, emails, and/or social media postings” but should stick to “only the relevant and necessary excerpts from these communications.”
Paris said she’s seen a rise in the use of digital evidence over her eight years of practice, which she attributes partly to changes in technology and demographics.
Gen X and Millennials are now at an age where they may be separating, she said.
“Compared to when I first started practising, now, the age group that I’m working with are very technologically savvy, so you’re seeing this type of evidence come up more often,” she said.
While it’s not practical to ask people to stop texting, they should be mindful when communicating, particularly after a separation, she said.
“And just get off social media altogether, because that could really be a sticking point.”