When Sarah Boulby tells clients going through a divorce or locked in a custody battle that their texts and social media posts might be put under a microscope, she usually gets one of two responses.
Often, people are “mortified," particularly in the face of any out-of-character messages, the Toronto family and divorce lawyer said.
"It can be a minefield, because it's no longer he said, she said, there's actual concrete evidence that can be recovered, digital evidence." Messages sent in the heat of the moment may later determine a key aspect of their case, said Di Federico, who encourages people undergoing separation to limit their texting and social media use.
Take, for example, a situation where one parent is arguing the other should have less parental time because of substance abuse, she said. The other parent may deny it, but if their social media paints a different picture, "that's going to be impactful, not only with respect to that particular issue ... but also it has now negatively impacted that person's credibility to the judge," she said.
"If you're able to demonstrate that one person is incapable of making reasonable decisions, or every time you're trying to make a decision, they use it as an opportunity to, let's say, discuss the relationship ... you can utilize those text messages in your court case to demonstrate that they cannot co-parent effectively," she said.
At times, there can be enormous amounts of digital evidence, especially since each message needs to be presented in context, she said. That can cause delays or make legal costs balloon as lawyers pore over heaps of records to whittle them down to what's necessary, she said.
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