Social Media Posts as Evidence in an Ontario Parenting Dispute

Many parents worry about what the other side has posted, and about their own posts as well. A photo from a weekend away, a late-night comment about your ex, or a message sent to your child can all end up in front of a judge.

This article explains in general terms how social media content can be used in an Ontario parenting dispute and how to handle it carefully. It is not advice on your situation, and a lawyer can help you decide what to use and what to leave alone.

Why posts matter in a parenting case

In making a parenting or contact order, only the child's best interests count, and the court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. A post can matter if it sheds light on that, for example by showing how a parent behaves, who was caring for the child, or whether a parent is respecting the other parent's role.

• Posts or messages that show threats, harassment or controlling behaviour
• Photos or posts that contradict what a parent says about their schedule or circumstances
• Public comments that disparage the other parent in front of the child or others
• Messages sent directly to the child

Family violence under the Divorce Act includes conduct that is violent or threatening, a pattern of coercive and controlling behaviour, or conduct that causes a family member to fear for their safety, and it includes harassment such as stalking, whether or not it is a crime. Online conduct can sometimes fall into that picture, depending on the facts.

How courts treat social media evidence

Documents used as evidence at trial must generally be originals that are genuine, relevant and necessary, and a witness has to identify the document at trial before it can be used. Someone seeking to admit an electronic document should also expect to prove it is authentic. That rule comes from the federal Canada Evidence Act, which applies to federal proceedings, and Ontario family courts apply the Ontario Evidence Act, so confirm the equivalent rule with a lawyer.

Courts also limit volume. Exhibits to an affidavit should not exceed 10 pages and must be limited to necessary and relevant evidence, and parties are told not to include voluminous social media postings and to attach only relevant excerpts.

Posts and alienation concerns

Some parents bring social media and messages to show that the other parent is turning a child against them. Alienation is treated as a factual finding, not a diagnosis, and the Court of Appeal has held a trial judge can find it on the evidence heard at trial without outside opinion evidence. In another decision, the Court of Appeal relied on a parent's own messages to the child and on the timing of the child's changed behaviour.

Where alienating conduct is found, courts may change parenting arrangements. In one case, the Court of Appeal upheld a transfer of primary care and a staged return to equal parenting time after a 39-day trial. These are serious findings that turn on the evidence, so do not assume a few posts will be enough.

Protecting yourself online

Assume anything you post, even to a limited audience, could be screenshotted and shown to a judge. Do not delete past posts in a panic, because that can look like hiding something and may destroy evidence you want to keep. Instead, stop posting about the dispute and speak to a lawyer if you are unsure.

• Stop posting about the other parent, the case or your children's private matters
• Do not tag the other parent or respond to provoking posts
• Tighten your privacy settings, but do not delete existing posts
• Avoid sending messages to the children about the dispute
• Tell a lawyer about any posts that worry you before they are raised in court

What to do next

If you want to use the other side's posts, save them promptly in a way that shows the date, the account and the content, and keep the original link or file. Then choose only the few that really bear on the child's best interests. Keeping your selection focused fits with the practice direction's instruction to attach only relevant excerpts.

• Capture posts with the date, account name and full context
• Note when and how you found each one
• Select the few that matter to the children's wellbeing
• Keep a copy of the originals in a safe place
• Raise any safety concerns right away with a lawyer or police

Frequently asked questions