Family Law Social Media Conduct Orders are more common than ever in family law cases. MacLean Law has also obtained orders restraining spouses from posting intimate images after relationship breakdown together with costs.
Can people post negative remarks about their ex-partner on social media? What is the remedy if your ex disparages you publicly online after a breakup? What is the remedy if your ex is in possession of intimate and private images or videos, and you are concerned that the sensitive media will be made public?
Family Law Social Media Conduct Orders Tel: 604 602 9000
The BC Family Law Act, in Section 222 and 227, provides the Courts with broad discretionary authority to make Conduct Orders limiting or restricting behaviour that the court believes might frustrate the resolution of a family law dispute by an agreement or order. However, this is not a blank cheque for the judge to make sweeping orders limiting peoples’ freedom of expression after a separation, as summarized in the BC Court of Appeal case, A.B. v. C.D., 2020 BCCA 11 (emphasis added):
[189] Sections 222 and 227 have been interpreted as giving the court “broad discretion to craft appropriate conduct orders”: see R.A. v. W.A., 2018 BCSC 1910 at para. 219. However, in crafting appropriate conduct orders, particularly orders that restrict a party’s ability to communicate with others, courts should take into account a party’s right to freedom of expression. In Chellappa v. Kumar, 2016 BCCA 2 …, a conduct order was described as “a complete gag on either party discussing the case with anyone” (at para. 30). This court (in obiter) expressed considerable doubt as to whether a trial judge has jurisdiction to make a conduct order that so broadly restricts a party’s freedom of expression, but if such jurisdiction does exist, “it should only be invoked in the clearest of cases on a full evidentiary record” (at para. 30).
In A.B. v. C.D., the father was publicizing his dispute with his transgender child, as he disagreed with the child’s gender identity and sexual orientation, and the Court of Appeal restricted the father’s behaviours, considering the best interests of the child. It appears that in cases relating to parenting conduct orders, the Court will be more inclined to restrict the parents’ public self-expression if that behaviour has the potential to harm the children at issue.
Vancouver Family Law Social Media Conduct Orders Tel: 604 602 9000
When it comes to public criticism of exes, the Courts have taken a more conservative approach. Namely, in Bergevin v Bergevin, 2021 BCSC 2039, the BC Supreme Court refused to make conduct orders under sections 222, 225, or 227 of the Family Law Act after the husband sought orders restricting his ex-wife from making unflattering Facebook posts about him. The Court stated:
[32] … While Mr. Bergevin says that Ms. Bergevin has repeatedly disparaged him online since May 2010, the only examples provided were a handful from February 2020. I am not persuaded that it is necessary at this time to prohibit Ms. Bergevin from making any social media posts about Mr. Bergevin or the parties’ separation in order to manage behaviours that might frustrate the resolution of this family law dispute. I therefore decline to make the order sought. Should Ms. Bergevin engage in behaviours in the future which have the effect of frustrating the resolution of this family law dispute, Mr. Bergevin is at liberty to apply.
In a different BC Supreme Court case, C.A.M. v T.C.H, 2023 BCSC 1283, the Court once again declined to make orders restricting the social media activity of the wife, who was posting negative comments about the ex-husband on Facebook, and posting pictures of herself that the ex-husband found to be inappropriate. Here, the Court distinguished the wife’s behaviour to the behaviour of the father in A.B. v. C.D., saying that “the form of restriction on the father’s public communications that was imposed in A.B. was found to be necessary to prevent the harm to the child that was being caused by the father publicizing his dispute with that child. The Court also emphasized that when applying these sections, the governing consideration is the best interests of the child. In other words, in cases involving parenting conduct orders are not primarily a means of protecting the parents’ interests.”
The Court in C.A.M. deferred to the law of defamation and the husband’s ability to request social media platforms to remove any material that violates it, to protect himself against false and injurious statements made by her on social media, and further stated that while the ex-wife’s sexual self-expression on social media “could be potentially relevant to her ability to parent in the children’s best interests if it exposes them prematurely to adult activities or ridicule among their peers, those concerns are best considered in the context of an application to vary the current parenting arrangements, if one is made.”
In short, when it comes to social media posts criticizing exes in public, the Court will be conservative and cautious in making any orders restricting freedom of expression, but will be more likely to intervene when the public self-expression has the potential to harm the children involved.
Vancouver Intimate Images Legislation Tel: 604 602 9000
What about if an ex has possession of sensitive media?
This concern is better addressed through the new Intimate Images Protection Act (IIPA) in BC, which has been in effect since January 2024, and which provides fast legal recourse against non-consensual sharing of intimate images (also known as “revenge porn”). Through the IIPA, victims can use the Civil Resolution Tribunal (CRT) to get images removed, obtain protection orders, and seek damages if the images were circulated to third party.
That said, parties may also seek Court Orders or terms in a Separation Agreement that specifies that the intimate images be deleted, destroyed, or otherwise kept private, with remedies, such as damages, in the event of their release, leak, and/or distribution.
