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Father’s credibility questioned after review of Instagram account

By Lisa Gelman

While social media can be an amazing tool – allowing us to communicate and share our lives with people around the world, it also brings with it an inherent lack of privacy. Even “private” accounts may be made public, and deleted photos or posts are not necessarily gone forever. It is important to carefully consider your social media presence while going through a divorce or separation. But as seen in a recent decision from the Ontario Superior Court of Justice, it’s also critical to consider what is posted online after a divorce is final.

Background

The trial was the result of a motion by the father to vary orders for child support made in 2016. The wife brought a cross-motion to strike the father’s pleadings because he had failed to pay outstanding cost orders and was behind in child support.

The father’s position was that he had suffered business and health-related challenges since the 2016 order and that these challenges have impacted his ability to comply with the orders. He had been ordered to pay $7,690 in costs in August 2017, and $750 in December 2017. He was also $15,470.82 in arrears on his child support obligations.

According to the father, he had to close his business and was also being pursued by creditors. He testified he was exploring a career change in an attempt to earn a more stable income.

Credibility issues

The court pointed out a number of issues with respect to the father’s credibility. The first was that he swore a financial statement in May 2014 that he earned no income. However, about one month later, he made a mortgage application representing an annual income of $150,000. The court was left with the conclusion that he either lied to the court or to the lender. The father’s lawyers said his financial statement was true and that he lied to the lender.

The second issue was a number of Instagram photos the mother included in her affidavit. They included photos posted to the father’s Instagram account. The photos included a Rolex watch, a condominium and a motorcycle. The father explained that the items in the photos were either not his (the Rolex) or were purchased before being sold for a profit (the motorcycle). The court noted that “Individually these isolated representations may be innocent but, collectively viewed, they raise serious questions about the father’s credibility, particularly when viewed in light of his earlier misrepresentation to his mortgage lender as noted at (a) above. Also, why would a person be posting on an Instagram account pictures representing a certain lifestyle when, as the father has represented to this court, he does not enjoy that lifestyle at all?”

The court found the father to not be credible when dealing with his financial affairs.

The court’s decision

The court found the appropriate remedy to be to give the father an opportunity to comply with his outstanding support obligations. Only after he had done that would he be able to renew his motion to vary the support order. Failing that, his pleadings on the non-parenting issues would be struck.

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