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Grappling with social media

Legal Report: Family Law
|Written By Patricia Chisholm
Grappling with social media
Illustration: Matthew Billington

For the children of divorce, keeping in touch with an absent parent used to mean a few fairly simple things: talking on the phone, letters, cards, and photographs sent by mail. Now, social media has opened up a treasure trove of new ways for these kids to communicate with absent parents. But at the same time, tools like texting, Skype, Facebook, Snapchat, and Instagram have created something that divorcing parents don’t need — new things to fight about.

More and more judges hearing family matters are wrestling with the rage of parents frustrated by the social media disconnection. Issues range from the pedestrian — scheduling Skype calls at dinnertime — to disheartening situations, such as young children repeatedly balking at forced digital “visits” with parents they rarely see. And as with so many areas of matrimonial law, the families where conflict is already high are having the most trouble with these new tools.

Along with the issues, of course, there can be many benefits. Nicholas Bala, a professor of family law at Queen’s University, notes that kids who don’t like the phone may open up on Skype or prefer the visual aspects of Facebook. That said, the potential for trouble is real. Texting non-stop with an absent parent can undermine the custodial parent’s efforts to maintain a routine. And kids themselves can use social media to manipulate warring parents by, for instance, diving into digital distractions like video games with an absent parent instead of waiting until a visit. “It can spiral into conflict between mom and dad,” says Bala.

Perhaps it’s not surprising that, with social media already being used by warring parents as a weapon in disputes over support, custody, and access, it is now being wielded to inflict more pain, post-separation. The result in a recent contempt motion heard by the Ontario Superior Court illustrates the issue. In Becker v. McGrath, a May 2016 ruling by Justice Kenneth Hood, the parents were in court to deal with continuing issues relating to access to their nine-year-old daughter. Following a consent agreement in British Columbia in 2011, the parents agreed that the daughter’s primary residence would be with the mother. The father was to have four, week-long visits with his daughter and weekly access by Skype. The mother, with the father’s consent, then moved to the Greater Toronto Area.

Among other issues in the Ontario court was the question of whether the mother had failed to facilitate the weekly Skype calls. The father asserted that the mother failed in her responsibility to facilitate the calls. The mother countered that, as her daughter became more resistant to participating in the calls, she took her for counselling at the Hincks-Dellcrest Centre for family therapy in Toronto. The counselling included a suggestion that the mother engage the father in conversation at the beginning of the calls, as a way of also engaging the daughter. The self-represented father objected to this process and argued that the mother was in contempt of the B.C. consent order.

The father also argued that the computer was not always on when he expected the Skype calls to occur and that this amounted to contempt; however, he refused to telephone to see about co-ordinating the Skype calls, such as requesting that the computer be turned on. In holding for the mother, Hood concluded: “The [mother] is not in contempt of any order. Rather, the [father] should act more reasonably in assisting to make the calls happen.”

Toronto family lawyer Tilda M. Roll represented the mother, who had never lived with the father, or even in the same city. She noted that in this case in particular, and for social media in general, there can be a tendency for the non-resident parent to put considerable weight on what social media can do.

As a result, adults can be overly concerned with the structure of these calls and rigid about their scheduling and how they are conducted. Too often, Roll noted, they expect their children to behave like adults who use Skype for lengthy, private conversations, while the reality is that children tend to be more fluid. Children may not even want to use such methods, keep to particular schedules, or speak for the allotted amount of time.

There can also be a tendency, as there was in this case, to turn the social media issue into a tug of war with an underlying agenda, says Roll. “It’s human dynamics,” she says. “You don’t want to make things comfortable for the person you see as being in your way. But the truth is, if you’re child-focused, you can never let yourself go there.”

Roll notes that, generally, social media can be useful. “Social media should continue and be part of court orders. What else are you going to do? That’s our lives now, it’s a global village.” Nevertheless, she adds, keeping arrangements flexible can be a very difficult task for many families. “People want to carve out their time and they get very addicted to that,” says Roll. For the ongoing management of the fine detail of social media arrangements set by agreement or court order, it’s helpful to use other professionals, such as a parenting co-ordinator or social workers first, she adds.

And the greater the distances in a community or region, the more likely it is that social media use by children will be a key part of co-parenting arrangements. Audra Bayer, a lawyer  with MacLean Law in Kelowna, B.C., says social media use as part of access arrangements is becoming more common in her practice; she notes that conflict over this issue often becomes more heated in situations where there is significant distance involved, because these parents generally struggle to maintain contact with their children.

As a result, bumps with social media can quickly escalate already troubled relations. “Parents come to court, saying, ‘This is not just contempt over a call, it’s contempt of access,’” says Bayer. “And the other parent may say, ‘I couldn’t get the kid to engage, or, the kid had Brownies.’” Too often, instead of trying to reschedule such conflicts, things deteriorate further, with the absent parent focusing on what appears to be obstructive behaviour by the custodial parent.

Often, parents are most of the problem, not the technology, she says. “I think parents are asking too much of the kids.” For instance, custodial parents may feel a Skype or FaceTime conversation is an imposition on the custodial parent’s time. But, says Bayer, “It’s not [the parent’s] time. It’s their time and it’s the child’s relationship with the other parent.”

A March 2016 decision from the British Columbia Supreme Court grapples with the issue, including the need to limit length, frequency, and hovering by custodial parents during such calls. In the context of a highly contentious divorce, Justice Neill Brown, in A.T. v. M.T., included a lengthy order setting out precisely when and for how long the parents of a young child would be permitted to have conversations with her using Skype and FaceTime. Although Brown noted he would defer to the parents’ wishes and include such access, the decision clearly seeks to limit excessive use of the technology. “I have reservations regarding FaceTime or Skype, particularly when a parent sees a child daily, or fairly regularly,” the decision says. “Telephone calls are simpler and lend themselves easily to keeping privacy. Further, the evidence as a whole leaves the impression of over-parenting.”

Social media may be an integral part of family law, for better or worse, but as Bala notes, it cannot be used to create what is not already there. “Certainly, well used, technology can enhance parent/child relations,” he says. But, he adds, while these technologies can be good at supporting a pre-existing connection, “It is not a good platform for creating a relationship.” Also key to consider, he says, is that social media provisions in court orders or parenting plans, like other provisions in these plans, should remain flexible and not be treated as a “once and for all thing.” Notes Bala: “With children, we know that things are going to change.” As children move through school, changing interests and activities, parents need ways to change the elements of these plans and that is likely to include social media. In general, Bala adds, changes will proceed more smoothly if family lawyers can help parents “shift from embittered former spouses to constructive co-parents.”

Like Roll, Bayer suggests that many families struggling to use social media this way would benefit from a parenting coach, who can make suggestions about reducing conflict. She also recommends other types of online communication, such as web sites that use a third-party platform to host and sometimes record online communications. These include sites such as ourfamilywizard.com, which allows children to participate in the process.

Finally, some families may simply prefer to reduce or avoid social media use as a primary method of child/parental interaction, notes Bayer. “The cautionary tale is, what is the cost-benefit analysis?” If the inclusion of a social media provision will be contrary to a child’s best interests because it cannot be effectively managed by hostile parents, it may not be the best choice. “But if the provision [for social media] is in there, parents ought to comply.”

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