Court Cases & Orders

Should Fitbit Data be Used in Family Court?

Fitness Aware Couple Outdoors

Should Fitbit Data be Used in Family Court?

These days there is no shortage of technology that quite literally tracks our every move: In the area of health and fitness, for example, there are Fitbit wristbands and similar devices which can monitor everything from the number of steps taken or stairs climbed in a day by the wearer, as well as his or her sleep patterns.

What if one day all that data gets trotted out (pun intended) before a Family Court judge in a divorce case?

About two years ago an Alberta personal injury lawyer made headlines because he intended to use the data obtained from a Fitbit to prove that his client, a personal trainer, had been in “peak physical shape” before allegedly suffering physical injuries in an automobile collision. This was apparently the first time in Canada that the information from such devices had been proposed for use as evidence in court.

Although the correlation is somewhat more direct in the scenario of a personal injury action, theoretically the data obtained from such fitness trackers could be used in Family Law cases as well: for example to bolster a spouse’s argument that he or she is legitimately depressed and inactive post-divorce. This in turn could play into the assessment of the spouse’s current ability to work – and by extension, of his or her “need” and legal entitlement to spousal support.

Of course, this amounts to a double-edged sword: it’s one thing to voluntarily offer up your personal tracker device as evidence, but another thing entirely to have it (figuratively) wrestled from you and used against you in litigation. And of course, as with any sort of evidence of this nature, there is an opportunity for the wearer/user to manipulate the data, not to mention the debate over potential frailties in data analysis methods, the limits of conjecture, and the validity of the resulting conclusions.

But it all raises the important legal policy question of such highly-personal and private information should be considered relevant and made compellable – by a court if necessary – as part of the discovery process that is a key part of the Canadian justice system.

So the next time you put on that Fitbit, or enter your day’s calorie intake in an App, or post your morning run statistics on Facebook, give some thought to how and whether this information could theoretically be used against you in the future.

What are your thoughts?

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.