In most court cases, the credibility of the litigant is important. This cannot be more true than in family law, 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 more. Judges and lawyers have always confronted these allegations with skepticism, backed by a demand for evidence to support the claims. The absence of evidence typically diminishes or negates such allegations. These types of behaviours are generally not public — nor provable.
Until now.
We are living in an era where nearly every person has a smartphone equipped with a camera. Photos and videos are captured and shared constantly, often with little thought to how they may be used later. Today, problematic behaviour — once hidden — is now publicly visible online.
Social media platforms like Facebook, Instagram, Twitter, and others have become vast repositories of personal data. The volume of publicly accessible information has given legal professionals a powerful new toolbox. Where lawyers once warned personal injury clients about physical surveillance, now every client must understand that their online behaviour— not just public but often deeply personal — is subject to scrutiny.
In litigation, one of the first places lawyers now search for background on clients, witnesses, and even opposing counsel is social media.
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).
So what is the prudent lawyer to say to a new client ?
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.
Editorial Note:
This article was originally published in 2015. While platforms and technologies have evolved, the use of social media content in litigation remains a powerful and accepted practice. As courts increasingly grapple with issues like misinformation, deepfakes, and AI-generated content, the core principle remains: digital behaviour is discoverable and can have serious legal consequences.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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