The availability of social networking sites has increased society’s comfort with sharing personal details, photos, and opinions. Posting personal information on social media during family law proceedings can be risky, as posting in a moment of frustration can lead to sharing inappropriate comments. Parties may be tempted to comment negatively, disparage the other spouse, or share unfounded allegations. Social media posts also give rise to concerns about the privacy rights of a couple’s children. Courts do not look favourably upon a party who wages a negative campaign against the other spouse on social media.
Courts Can Restrict Your Posts on Social Media
When a parent is engaged in cyberbullying of the other parent, courts may make an order addressing the behaviour under their authority related to decision-making responsibility and the child’s best interests. In E.H. v. O.K., concern was raised around social media posts made by the father in which he commented about the mother, the ongoing court case and posted his daughter’s picture to solicit funding. This breached the child’s privacy and was contrary to her best interests.
The Court referred to section 28(1)(c) of the Children’s Law Reform Act, which deals with parenting and contact orders. The Act enables the Court to make any additional order the court considers necessary and proper in the circumstances, including an order:
- limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child; or
- prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child.
Justice Sherr noted that courts can make such orders in the best interests of children and ultimately ordered the father not to denigrate the mother, post about the court case, and remove all the existing postings and commentary that were within his control.
Abusive Online Communications Causes Family Harm
Courts have been clear that the targeting of a parent can extend harm throughout a family, impacting children’s well-being. The case of G.J.B. v. D.R.K. involved one parent’s extensive communications online and on Facebook, disparaging the other parent. The mother’s comments denigrated the father to his children, employers, and others, with the objective of exposing the father as an “abuser”. The Superior Court of Justice cautioned that these types of communications, once posted, “can and often do take on a life of their own, and the consequences can be dangerous and devastating.” Justice Harper noted that disparaging comments against a custodial parent that are posted online or on social media increase the stress and distress within the entire family. When this conduct is protracted over a long period of time, it can cause emotional harm to children.
This connection between the denigration of one parent and resulting harm to children was explored in the case of A.R. v. C.S. in Québec. The Court explained that children instinctively love both parents and when one parent is vilified by the other, children can suffer personally “as if half of their own self was being denigrated as well.” Because of this, courts take the severe derogation of a parent seriously. As per Justice Harper in G.J.B. v. D.R.K., it is not an issue of freedom of speech but instead represents the court’s “duty to ensure that children are not harmed.”
Targeting Your Spouse Online Can Violate Your Children’s Privacy
Bringing children into a public legal battle will not be in their best interests and can create a need for the court to intervene to protect their privacy. Such issues were before the Court in Yenovkian v. Gulian where the father posted material online, including photographs, videos, and personal identifying information about his children. Justice Kristjanson found that the circumstances engaged Article 16 of the United Nations Rights of the Child Convention, which states:
- No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
- The child has the right to the protection of the law against such interference or attacks.
Privacy is Protected Under the Convention and the Charter
The Ontario Court of Appeal has held that courts have a duty to protect a child’s privacy interests because of their inherent vulnerability. The Convention also requires special safeguards and protection by courts on matters that involve a child’s best interests, which extends to their privacy interests.
Additionally, because disclosure about their lives is beyond their control, protection of children’s privacy is included under sections 7 and 8 of the Canadian Charter of Rights and Freedoms. For Justice Kristjanson in Yenovkian v. Gulian, this intrusion “could reasonably be known to cause these children intimidation, humiliation, distress and harm to their feelings, self-esteem and reputation.”
Court Issues Restraining Order in Cyberbullying Campaign
Where a court finds that a spouse has inappropriately used social media or engaged in a cyberbullying campaign against the other spouse, a restraining order may be an appropriate response. The order can restrain a spouse from communicating with the other spouse or with a child in that spouse’s custody.
In A.T. v. V.S., Ontario’s Superior Court of Justice stated that the party requesting the restraining order must have reasonable grounds to fear for their own safety or the safety of a child in their custody. In A.T., the Court found that a restraining order was appropriate to protect the child’s privacy, given the respondent father’s activities on social media. While the father had not threatened physical harm, he had invited online followers to search for the applicant mother and encouraged his followers to bully her. The comments on the father’s posts included some that were threatening, leading the judge to conclude that the mother’s fear for her safety was reasonable.
The Family Lawyers at Howie Johnson Barristers & Solicitors in Windsor Help Clients Navigate Divorce and Separation
The experienced divorce lawyers at Howie Johnson Barristers & Solicitors have assisted clients in Windsor and Essex County by helping them navigate and work through family law disputes. Our lawyers frequently advise clients on matters involving children and social media throughout divorce proceedings. To schedule a consultation with one of our family lawyers, contact our office at 519-973-1500 or reach out to us online.