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Don’t post in haste, family lawyer warns

Social media and family law shouldn’t be Facebook friends, Toronto family lawyer Erin Chaiton-Murray tells AdvocateDaily.com.

The issue of damaging social media posts and email trails could hardly be more topical, given recent headlines about “digital documentation” and fallen movie mogul Harvey Weinstein, says Chaiton-Murray, a senior associate with Fogelman Law.

With digital devices increasingly used as a primary means of communication and recording, social media content has the potential to be used as evidence in court and should always be discussed with clients from the outset.

Ongoing education about the rapidly changing social media world is important in family law, Chaiton-Murray says.

With that in mind, she and Fogelman Law summer student Vanessa Sidwell, who returns to the firm to article next year, wrote a paper on the dos and don’ts for lawyers around social media and family law. Chaiton-Murray presented it in October as part of an Osgoode Professional Development continuing legal education program focusing on evidence in family proceedings.

“As lawyers, we should alert clients that their social media activity may become relevant to their case and that judges are increasingly relying on social media evidence to inform their judicial decisions,” Chaiton-Murray and Sidwell write.

“I tell clients they should be careful about how they’re using social media. You can assume from now on people might be observing it, or that it may show up as an exhibit to an affidavit,” she says.

Chaiton-Murray asks them to disclose how they use social media and to detail texts or posts that could prove problematic, encouraging clients to talk openly and “tell me what the worst of it is,” so they can discuss the context in which communications occurred to plan a potential response.

“You can’t change what’s already happened. We can talk about steps going forward and how you control and put limits on your communications,” she adds.

Deleting texts or posts or closing an account won’t erase the damage, she warns. Nor can clients assume they have control over who sees what. And so-called temporary social media networks like Snapchat may not be so harmless. A screen grab allows a post to live on.

“People don’t think about the implications beyond the moment of ‘I’m feeling angry and I want to post something about it,'” says Chaiton-Murray.

“It’s not as private as you think,” she points out, explaining that during an initial client meeting she often goes over public vs. private account settings and suggests passwords be changed immediately to avoid email or social media being hacked or taken over by others.

Chaiton-Murray cites as an example, the potential for inappropriate comments posted on an unlocked Instagram account by the other party to impact a case. These could be viewed by an employer, for example, and “could impact on their job and/or income.”

Think about your audience, she cautions clients. Who is going to see it? And consider how can that impact the family law situation.

This is especially true of parents who have “friended” their kids on Facebook or other social media sites as a means of monitoring their activity. What she sees happen more frequently is hearing from a client concerned about a former spouse’s inappropriate posts, which can be seen by their kids and all their friends. The concern is that the posting parent demonstrates that they are not capable of meeting the children’s needs or understanding the harm that is done to the child who can view the content.

"They just don’t think about the bigger picture,” Chaiton-Murray says of spouses who post in haste.

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