“The Litigation Version of 50 Shades of Grey”: How Your Conduct and Online Presence May Not Be Relevant in Custody and Access Cases

Fifty-Shades-of-Grey   A parent's conduct is only relevant to custody and access cases if it affects the parent’s ability to care for the child and meet their needs (Durham v Robertson (1998), 79 ACWS (3d) 958.) So what happens when your ex-partner drags up something from your past? How about an embarrassing post you made online? What privacy are you afforded? With social media playing such a large role in our daily lives, privacy is hard to come by. But before you start taking screen shots of your ex-partner’s Facebook posts and Twitter account in order to embarrass them in court, maybe take a second thought. In the recent case of S(J) v M(M), a Father brought a motion for primary residence of the older child, and expanded access of the younger child. The Father attached a number of explicit images of the Mother and sexually graphic text conversations to his materials. His reasoning for doing so was speculation from the Father’s counsel that the Mother must have spent so much time "sexting" in 2013, that “possibly she neglected their son (para 28(c)).” This was not received well by Justice Pazaratz, who set out to make a point in his decision: “nasty doesn’t work… nasty won’t be tolerated (para 30&31).” Justice Pazaratz’s no-nonsense (and rather entertaining) decision laid out the instances where social media has helped the courts: “Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:  
  1. Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.
  2. Intimidating and threatening behaviour often becomes self-evident in texts.
  3. A parent's resistant attitude toward timesharing frequently comes through loud and clear in e-mails.
  4. It's quite amazing the incriminating things people will type and photograph. Too bad if it comes back to haunt them (para 12.)”
  It should be noted that the images and text messages in S(J) v M(M) were retrieved from the Mother’s cell phone, and were not posted publicly by the Mother. In contrast, the Mother in M(KL) v B(J) 2013 BCSC 2041 provided a number of screenshots from the Father’s Facebook page as evidence of what the Father was actually doing when he was supposed to be exercising access with their chid. The Court held that these screenshots were admissible as evidence because they were relevant to the parenting question in the case and they were the Father’s own words provided to his peers publicly. The court concluded that the Father’s Facebook postings were not “truly private” communications and he could have no real expectation of privacy (para 9). For Justice Pazaratz, the embarrassing evidence dredged up in S(J) v M(M) was proof of just one thing: “the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life. Big deal (Paras 15 and 16).” Furthermore, Justice Pazaratz brings this Father and his counsel back into the 21st century, reminding us that “all of this smacks of a puritanical double standard. The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent. That kind of hypocrisy is a thing of the past (para 32(d)). ” Ultimately, Justice Pazaratz ruled the Father’s “evidence” as inadmissible, and denied his motion. As entertaining as Justice Pazaratz’s decision may be, his message rings load and clear – do not provide the court with embarrassing evidence in a custody/access case unless it is truly relevant to one’s ability to parent. Or, in the case you do decide to provide explicit information to the court, being polite about it and using some discretion may be to your benefit: “The Applicant could have collectively referred to them as ‘a lengthy exchange of sexually explicit messages.’ Instead, the Applicant felt it was necessary to file about 89 full page colour enlargements of the texts. The litigation version of 50 Shades of Grey (para 28(b)).” The moral of this story is twofold: beware what you choose to share with the court of your ex-partner’s online presence or personal conduct. Embarrassing them will not grant you an advantage in court and runs the risk of being unappreciated by the Judge presiding.  Secondly, beware what you make available about yourself online. If you post something embarrassing or unbecoming that can be seen as relevant to your ability to parent, you may regret it, as that brief moment in social media time could potentially have a negative impact in the future. The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at contact@kainfamilylawtoronto.com to book a free 30 minute consultation with one of our experienced family law lawyers.
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