Co-Parents & a Picture-Perfect Holiday

There's nothing like a picture-perfect holiday for your Instagram feed. But while it may feel harmless to share photos of your children opening presents, there might be more to consider.

Despite your intentions, posting a picture online doesn't guarantee only family and friends as your audience. In fact, at times it might mean the photo of your kids hanging their stockings with care is visible for the whole world to see. Some parents may share their views on posting their kids on social media. However, this can be problematic for co-parents who are separated and/or going through a divorce.

Before pressing the “post” button this holiday season, make sure to read this article first.

The Law & Posting Children on Social Media:

The are no statutory laws in Ontario preventing a parent from posting images of minor children on social media. However, there are laws that prevent the posting of images in a negative context. This means if the picture may be harmful to the child, to the co-parent, or the family in general.  If the court finds that the posts are harmful, it can result in publication bans for the parent, a hefty fine and/or imprisonment.

The Children’s Law Reform Act makes it clear that the court has the authority to prevent a parent from making negative social media postings. They can also Order them to remove the existing ones. These restrictions may be granted by way of a parenting order.

What is Considered a Harmful Post?

Rules regarding the posting of minor children on social media have evolved in the last ten years to reflect the realities of the growing social media sphere. Whereas, in the past, Facebook was the main form of sharing photos, videos and news with family and friends, we now have TikTok, Instagram, Snapchat, YouTube Shorts and so many more platforms.  At times, these venues are used by frustrated co-parents to complain about the court system or their partners.

Ontario courts have made it clear that you may not do this – especially where children are involved.

In a recent case of S.B. v J.I.U. (2021), the court noted that the use of social media posts that are intended to hurt, humiliate and/or intimidate your co-parent may be considered cyberbullying. In turn, this becomes a form of family violence.  In that case, the father had made social media posts where he shared court documents relating to child protection. He also shared photos and videos of the mother and children with malicious commentary.  The court made an Order to prevent the father from making any further posts and for the prior posts to be removed.

There are also cases where co-parents are not being negative in their posts. Instead, they are making private information about the child public. This may include the child’s home address, school name, schedule or any other factor that could assist predators in finding the child. Ontario courts have noted that this type of information could place the child at risk when it is made public.   

Effects of an Agreement made by Co-Parents:

Intentionally harmful photos may not be a parent's only concern. In some cases, a co-parent simply might not be comfortable with featuring their child online.

During separation, co-parents may wish to address the issue of when and how children’s images are shared in social media.  This can be done by way of an agreement, such as a parenting plan.  The terms of the agreement are drafted based on the wishes of the parents and the needs of their child.

For instance, parents can create parameters on what is shared in their posts. An example might include refraining from the use of the other parent’s image in the photo. Additionally, ensuring the children are fully dressed in all photos and regulating the privacy setting of the posts.

The world of social media is only going to grow, and new digital features will be introduced.  Many of these features may not be foreseeable.  Also, as children grow older, the restrictions may need to be amended based on the child’s needs.  For these reasons, it is a good idea to set a review date in the agreement or else set out grounds on which the agreement can be revised by the parties.

The wonderful aspect of using a parenting plan to address this issue is that it allows both parents to communicate their concerns and have them addressed in the agreement. Where parents are not able to communicate well together, lawyers and mediators can be helpful in assisting the negotiation process.  You may wish to consult a lawyer in drafting the parenting plan as the language of the agreement is very important.

Effects of a Court Order:

A court Order must be followed. Neither party may breach a court order for any reason. 

Before a court order is made, the parties must go before a judge and provide their respective views and evidence to substantiate their position. A court will not simply make an Order restricting a parent from posting their child’s image on social media unless it harms the child in any way.

It is important that the proper legal arguments are placed before the judge and the court is given the required evidence. Otherwise, you may find an Order against you that feels unfair.  Once an Order is made, it is both costly and difficult to change it. In some cases it may even be impossible to make changes.

It is always a good idea to consult a family lawyer if you are served with court documents.

What are the Consequences of not Following a Court Order?

Breaching a court order is very serious.  If an Order states that you are not permitted to post any images of the children and you refuse to comply, the court has a number of remedies. This includes striking your pleadings in court, monetary fines, and imprisonment.  For instance, under the Child, Youth and Family Services Act the court can make a fine of up to $10,000 and imprisonment of up to 3 years.

Tips for Co-Parents When Posting Images of your Children:

• Be selective of who you accept as “friends” on social media. Use the privacy setting on your social media to restrict who can see the images. 
• Don’t share private information, such as the child’s home address, or school.
• Ensure the children are dressed appropriately – do not post nude photos.
• Change all social media passwords after separation.
• Keep all captions, audio, text and messages associated with the image positive.
• Do not make any negative comments about the other parent – directly or indirectly.
• Do not allow family and friends to make negative comments about the other parent.  Yes, you can control this by simply deleting these comments and asking family and friends to avoid making these comments.
• Do not include anything, directly or indirectly, about the court proceeding.
• Always remember, privacy settings do not prevent followers from sharing your images or prevent the court from making an order to access your social media. Be mindful of what you are posting whether it is private or public.

'Tis the season to be jolly. But it is also the season to be careful. Think before you post this holiday season!