MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

282 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
For example, a father whose Facebook profile contained inappropriate
language and homophobic jokes was denied access to his children. 268
Another father was denied joint parenting control after the court reviewed
his Facebook account, noticing crude and obscene references to porn
stars, links to a page referring to his former spouse as crazy and other
derogatory material alongside photos of his child. 269 A young mother who
uploaded photographs of herself smoking marijuana, drinking and
dancing to Facebook was denied custody of her child and unsupervised
overnight visits. 270 In another case, a wife won sole custody after her
husband made repeated negative comments about her and appeared to
stalk her by posting photographs of her car parked at a friend’s house on
his Facebook account. 271
However, not all social networking material impacts negatively on a
decision. One judge rejected as immaterial that a mother used to work as a
stripper and had salacious photos on her Facebook account, stating,
“[c]onduct, save as it bears upon the care of the children, is irrelevant to
my determination of temporary custody and access.” 272 A BC judge
rejected a mother’s contention that a disheveled photograph taken of a
father with his daughter likely showed him on drugs, noting the
alternative explanation that it was a sleepy morning photo taken while
camping. 273
5. Education Law
Educational institutes are also coming to terms with social networking
usage by students. Unlike private law cases involving employers,
universities and schools are more limited in how they can use comments
on a social network; many are “government actors” and thus their students
may be protected by either Section 2(b) of the Canadian Charter of Rights
and Freedoms 274 or by the First Amendment in the US. 275 In Pridgen v
268
Westhaver v Howard, 2007 NSSC 357, 260 NSR (2d) 117.
269
M(MJ) v D(A), 2008 ABPC 379 at para 52 (available on WL Can).
270
W(JWA) v B(A), 2008 NBQB 157 (available on WL Can).
271
Byram v Byram, 2011 NBQB 80, 376 NBR (2d) 241.
272
Dearden v Dearden, 2009 ONCJ 90 at para 11 (available on WL Can).
273
D(K) v S(J), 2010 BCSC 1160 (available on WL Can).
274
Charter, supra note 36, s 2b.
275
US Const amend I.