Using Texts and Social Media as Evidence in Ontario Custody Cases

Texts, emails and social media posts often become the heart of a parenting dispute. They can show how you and the other parent communicate, who handles the child's needs, and what each of you said at the time.

Whether a particular message or post will be accepted and how much weight it gets depends on the facts and on the judge. This article explains the general approach and how to organize what you have. A lawyer can tell you how the rules of evidence apply to your own material.

Why messages matter in a parenting case

Under the Divorce Act, the court considers only the child's best interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Parents who were never married, or who are not divorcing, need a parenting order under Ontario's Children's Law Reform Act instead. Messages are useful only to the extent that they shed light on those issues.

Among the factors a court looks at are the history of care, each parent's willingness to support the child's relationship with the other parent, each person's ability and willingness to communicate and cooperate, and any family violence. A thread of messages can show co-operation or its absence in a way that general statements cannot.

What tends to help and what tends not to

Courts focus on relevance. Past conduct, for example a mental health history or past substance use, is not considered under the Divorce Act unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact. The same thinking is a useful guide for messages and posts: ask whether each item bears on the child's care.

This table is a general guide, not a rule of admissibility. A judge decides what is relevant and what weight it should carry.

Presenting messages properly

A family motion uses Form 14 (Notice of Motion) and Form 14A (Affidavit), and the affidavit must be sworn or affirmed.

In the Superior Court, each party may file one primary affidavit on a motion, limited to 12 pages of narrative for short or regular motions and 20 for long motions. Exhibits should not exceed 10 pages. Those limits do not apply to hearings about the wrongful removal or retention of a child. Page limits and rules change from time to time and differ in the Ontario Court of Justice, so check the current rules for your court.

• Choose the few messages that matter most rather than everything you have.
• Show the date, time and sender on each message.
• Include the messages before and after, so the context is fair.
• Describe in your affidavit what each exhibit is and why it matters.
• Keep the original messages on your device in case they are needed.

Social media and your own conduct

Assume anything you post or send may be read by a judge. Venting about the other parent, posting about the case or sending angry messages can hurt your position, because the court considers each parent's willingness to support the child's relationship with the other parent.

How you handle your own messages, posts and accounts once a dispute has started can matter, so it is worth confirming with a lawyer before you delete anything or try to get into another person's accounts. Doing so can create new problems. Ask a lawyer before taking any step to obtain material.

If you are setting up a communication plan, Justice Canada's checklist asks parents to decide how communication will happen, whether by phone, e-mail, text, social media or video chat. A clear plan reduces the heated messages that end up in court.

What to do next

• Back up your messages and take dated screenshots.
• Make a short timeline linking messages to events involving the child.
• Sort the material into what is relevant to the child's best interests and what is not.
• Keep your future messages brief, civil and about the child.
• Speak to a family lawyer about what to file and how to keep within the page limits.

Frequently asked questions