Legal Briefs — Emails, texts and Facebook in family law

Hey there, time traveller!
This article was published 25/02/2012 (5158 days ago), so information in it may no longer be current.

Family law is interesting in part because aspects of it are always changing, along with changes to our society.

One perfect example is electronic communications. Those of us who began practising family law many years ago recall a time before emails, texts, chat rooms, Facebook and video calls were ever a part of our cases. Now they are part of almost every case.

Spouses used to be able to have a face-to-face argument, say awful things to each other, and when it was over it was only one person’s word against the other as to what was said. If they even remembered what was said. No longer.

Unfortunately, with the emotional nature of family law, clients are not always very responsible when it comes to these electronic communications. Common sense tells us that every email and text that we send to another person can be saved and used against us in the future. Yet we do not always consider that before hitting the “send” button. Ranting and threatening a former spouse can be irresistible, but doing so in writing has unfortunate consequences.

Emails and texts can be valuable in marital litigation. For example, one parent will complain that they are never informed about the children’s medical status, but emails can prove otherwise. A parent can argue that they are always asking for but never allowed extra time with their children, and emails can be proof of those requests. In custody cases, parents will argue about why time with the children was refused. The email will remind everyone as to the reason given.

Emails can prove an agreement on a holiday schedule, preventing one parent from changing their mind.

In more disturbing cases, there can be email or Facebook evidence of one parent defaming the other, even to the children, and engaging in an out-right war with their children’s mother or father; sometimes even bragging about it. These sorts of public statements reflect badly on the parent once the matter gets to court. When deciding custody, judges will look at each parent’s attitude toward the other, and social networking sites can show a whole other side to a parent.

Simply deleting one’s former spouse as a Facebook friend is often not effective. There is usually a mutual friend willing to print the Facebook postings.

Social networking can give the other parent evidence of travel, or moving, plans, of a new partner or information about the children that is not being shared as it should be. Facebook pages can also be helpful in child or spousal support cases, for example when a spouse discusses working under the table, purchasing new assets, or posts photos of a lavish vacation.

Security is another concern entirely.

An estranged spouse still sometimes has access to their former partner’s email account, or the password might be relatively easy to guess. With clients communicating with their lawyers by email more and more, they must be very cautious to protect their account as best they can.

Texting and emailing can be very helpful for separated parents who still have heightened emotions. It allows them to relay information quickly and efficiently and prevents an argument in front of the children. But they have to remember to take a breath and consider their words before hitting “send.”

» Jodi Wyman is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.

» patersons.ca.