How the world wide web is used in divorce procedures

In most court cases, the credibility of the litigant is important. This cannot be more true than in Family law, especially divorce procedures, where the issues are so personal and the stakes so high. It is extremely common in divorce cases to hear allegations of drug use, alcoholism, adultery, new partners, cash income, hidden assets and plenty more. Judges and lawyers have always confronted these allegations with skepticism, backed by a demand for evidence to support these claims. The absence of evidence typically diminishes or negates such allegations. These types of behaviours are generally not public, nor provable. 

Until now.

What evidence does the world wide web contain?

We are living in an era where every person has a cell phone equipped with a digital camera. Photos are snapped indiscriminately and posted with little concern for its implications. We are now living in a generation where all sorts of human behaviour - however problematic - is captured in photos and video and posted online. Internet sites such as Facebook, Youtube, Instagram and Twitter receive millions of downloads and hits every day. The volume of publicly available data has delivered the legal profession a robust inventory of data. There was a time that plaintiffs’ counsel in personal injury cases would alert their clients of the possibility of surveillance and the need to be cautious and discrete regarding their public behaviour.  But now it is all behaviour - public and private - that is being recorded and disseminated to the world. In litigation, one of the very first sources of data on clients, witnesses, lawyers and even judges is the internet. 

So be careful.  

Social networking websites are now known and recognized as legitimate sources of evidence. Courts have endorsed service through websites such as Facebook (Knott Estate v. Sutherland [2009] A.J. No. 1539; Eastview Properties Inc. v. Mohamed [2014] O.J. No. 4220; J.R.P. v. D.D. [2012] N.B.J. No. 19). When it comes to documentary discovery, the Sedona Canada Principles has legitimized the evidentiary value of digital data. In Ontario, pages of a social networking site are deemed documents for the purposes of discovery (Ottenhof v. Kingston (City) Police Services Board [2011] O.J. No. 976). Tweets and Instagram photos are similarly admissible evidence (Beattie v. Beattie [2013] S.J. No. 209); Stokes v. Stokes [2014] O.J. No. 924). 

What should divorce lawyers advise their clients?

Answer: Advise the client to cease and desist from taking and posting photographs of one self, or even being in another person’s photographs while the case is live. Do not update any social media site. Take down any site, photo, video or content that could be contrary to the client’s legal interests. Reset passwords and increase the privacy level on any social networking account. At the same time, clients should monitor their spouse’s pages for evidence.

For more information on quick and seamless divorce procedures in Canada as well as guidance on the various divorce forms, contact SplitEasy today! We want to help make your divorce procedure easier and less stressful!