One of our readers brought to our attention the following comment:
In Jesmer it was actually the father’s girlfriend who wrote the Facebook message to the mother’s sister (not the father’s sister). She had testified that the father was a capable parent, and then she e-mailed the mother’s sister saying he wasn’t and that she would testify as much for a fee.
The court therefore found that none of the father’s girlfriend’s evidence was of any value and ordered a parental capacity assessment
So we went back to our original research and have revised our earlier blog accordingly. Thank you to Spinnaker for the comment and bringing this to our attention. So without further ado, here we go …..
Facebook as a Source of Evidence In Family Law: Part 1
Facebook, Twitter and other social networking sites are now a routine part of many people’s lives, and have become a convenient means of interacting with others. What some people do not realize, however, is that postings and activity on Facebook and similar sites can be used in family litigation – and usually in unexpected and unforeseen ways.
For example, in a very recent Ontario decision called Jesmer v. Delormier, the father applied to the court for access to his child, a boy named Wyatt. The mother opposed this, claiming that the father and his family should have no access to Wyatt whatsoever.
After an initial hearing, the court found the father should have increased exposure to the son on a “baby steps” basis, and ordered that the father should be given access, but only on a supervised basis. However, in the months since, the father never really got a chance to fully exercise it, because the mother threw up obstacles to thwart it.
The matter came back before the court for review. As part of that hearing, the court was asked to consider new evidence relating to concerns about the father’s parenting ability, sparked by a Facebook message that the father’s girlfriend had written to the mother’s sister:
Okay so what I wanted to say. I lied to the judge and it was wrong. I’m hoping this isn’t going to backfire but I think that the best interest of Wyatt is with Alex [the mother] and that she is right in some ways I think Craig [the father] should have supervised visits if anything but Craig is not capable of caring or looking after kids. He has a violent anger which is why I didn’t say the truth that day I was scared and which is why I left. Now there are numerous things I can bring to the judge about Craig and how he is unfit to have any kids without supervision. I do think Wyatt should know him but I wouldn’t trust Craig with any kids either. I did everything and he would leave at long times with me taking care of the kids he never changed Leiland’s diapers I was always the on [sic] to change them. He yelled at me and the kids many of times. I am willing to tell the judge this but I don’t want to be named. Not sure how this would happen though. All I would like out of this is 15,000. I could use the money not going to lie.
I hope you all have a merry xmas and a happy new year.
This Facebook message came to the court’s attention, and the hearing was re-opened to allow the court to consider the effect of this new information. When confronted, the father’s girlfriend claimed that the Facebook message was untrue; she said she had simply sent it in a fit of fury after a fight with the father. (She had left the home they shared but when she called later to speak with him, an unknown woman answer the phone). She said she wrote the Facebook message to hurt the father.
The court found that the girlfriend’s explanation with respect to the Facebook message simply did not ring true. And whether true or not, the fact that she even sent it displayed “a complete lack of judgment and a total disregard to [the child] Wyatt’s best interests”. Her suggestion to the sister that she would accept $15,000 in exchange for her testimony could only be to further her own interests, and not a means to hurt the father. The court also noted that she came up with the current explanation a full three months after she posted the Facebook message, and – conveniently – at a point when she and the father had apparently reconciled. Accordingly the court could not determine whether the girlfriend had lied in court or had lied on the Facebook message. It therefore disregarded her evidence in its entirety.
Similarly, in a case called M.J.M. v. A.D., the court reviewed the father’s Facebook page as evidence of his character and his credibility. It observed:
48 With respect to the father’s complaint that the mother is attempting to fool the Court about him, I have heard the evidence and observed the demeanour of both parties while giving their evidence.
49 The mother’s demeanour was straightforward and direct. She answered the questions she was asked and did not try to present herself in a better light. This positively affected her credibility.
50 The father’s demeanour was at times overly self-confident. At times in his cross-examination he answered questions with questions and was evasive. At times he was contrary; at times he shrugged when answering questions so that he displayed and conveyed a challenging “so what” attitude. He gave the grandmother the “finger” during her evidence, which was remarked upon by the grandmother and which I observed. This was both disrespectful and displayed the kind of dismissive attitude he has to the mother’s family and the mother. He did not present himself in the best light at a time when the child’s best interests called for the same. All this negatively affected his credibility.
51 Where there is a difference between the evidence of the mother and the evidence of the father, I accept the evidence of the mother.
52 In addition to the conflict between the parties, the father has demonstrated and displayed publicly (at least to his some 95 “friends” on his Facebook page) his disregard and callous lack of consideration of the mother, and his demeaning and dismissive attitude to her. On his Facebook page is a link to another site entitled “[the father] has a crazy x!”. Additionally, the father has an obscene and crude reference to a “porno actor” on his earlier Facebook page. The father refers to his Facebook page as “fun” and a place to have “fun”. This is hardly funny in the unique circumstances of this case. I also note that one of his “friends” on his Facebook page is his common-law partner’s twelve-year-old daughter. This child has been exposed to the father’s rancour and attitude to the mother. At the same time, the father has posted pictures of the child on his Facebook page. He has thereby linked the child to his rancour to the mother and, despite her young age, also exposed her to adult-appropriate matters which the father thinks are fun. That the father would do this is surprising and speaks to the issue of the whether the father can protect the safety of the child absent a detailed Court order. This does not speak to an adult consideration of the child’s best interests. I ordered him to remove the child’s picture from this site and not to post the child’s picture on any other Internet sites. In my opinion, posting her picture like this both puts the child at risk and exposes her to risk.
Overall, there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child.
Finally, in Himes v. Himes, which was another Ontario case, the court had to consider whether an exchange between spouses on Facebook could be introduced as evidence. In that case, the wife had approached the husband to see whether he was willing to discuss an application for child access that he had launched. The wife was afraid to talk to the husband directly, because she found him controlling. However, she agreed to talk to him on Facebook, and they did so for a few days. The wife wanted to introduce this Facebook exchange as evidence, but the court characterized them as essentially being settlement discussions, which were privileged even if both parties consented to have them introduced as evidence of what each was proposing to the other. Accordingly the court disregarded the Facebook exchange entirely.
Russell Alexander, Family Lawyers are experienced in all areas of family law. For more information, visit www.RussellAlexander.com
To reference these cases please see:
Jesmer v. Delormier, 2011 ONSC 1750 (S.C.J.) http://www.canlii.org/en/on/onsc/doc/2011/2011onsc1750/2011onsc1750.html
M.J.M. v. A.D., 2008 ABPC 379 (Alta. Prov. Ct.) http://www.canlii.org/en/ab/abpc/doc/2008/2008abpc379/2008abpc379.html
Himes v. Himes,  O.J. No. 2787 (S.C.J.) http://www.canlii.org/en/on/onsc/doc/2009/2009canlii55341/2009canlii55341.html