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Posts from the ‘Bullying’ Category

Court Curbs Father’s Social Media Activity

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Court Curbs Father’s Social Media Activity

The decision a case called Cooper v. Primeau serves as good illustration of the level of detail that a court must address, in disputes between parents and former spouses.   In this ruling, the court took specific aim at the father’s habit of posting derogatory comments about the mother on social media such as Facebook.

The factual underpinnings were rather routine, involving normal matters such as custody, access and child support of the separated parents’ two children.  After several prior rulings, the court was left with two issues:

  • Whether the parents were required to provide each other with their updated phone number; and
  • Whether the parents may post photos and information about the children on social media such as Facebook.

Issue around providing a phone number turned out to be easy:  The father indicated before the court that he was prepared to agree to providing the phone number as long as the calls from the mother were limited to emergencies regarding the children.  The court made an order accordingly.

But the social media aspect was a little more contentious.  The mother made several accusations around the father’s use of the internet, including that he had:

  • Blocked her on social media;
  • Used social media to broadcast and discuss his ongoing dispute with the wife regarding access to the children; and
  • Used “crowdfunding” through social media to raise funds to assist him with his legal costs. In doing so, he was very critical of the mother in his plea for funds.

In his defense, the father contended that he wanted to continue to use Facebook as a means for his family to get to know the children.

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Nonetheless, the court concluded that while it may be reasonable to allow him to publish photos and comments about his children generally, these types of posts could justifiably include any mention of the legal dispute between the parents, or any derogatory comments about the mother. The court noted that “associating the children to such a legal battle [between the parents] in a public forum is not in their best interests.”

Ultimately the court made an order about the social media aspect on specific terms:   Posting photos on Facebook was okay, but posting comments on his dispute with the mother, making derogatory comments about her, or posting anything about his access issues to the children, was not.

For the full text of the decision, see:

Cooper. v. Primeau, 2018 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Should This Homeowners’ Insurance Policy Indemnify a Bully’s Parents?

fly happy family on blue sky

fly happy family on blue sky

Should This Homeowners’ Insurance Policy Indemnify a Bully’s Parents?

Bullying between kids is a hot topic lately. Public dialogue usually focuses on prevention; however it can (and should) also touch upon the related issues of whether parents should be accountable for their kids’ behaviour, and whether they should be vicariously liable from a legal standpoint.

A recent Ontario case takes this inquiry one step farther – by delving into the question of whether an insurer under a homeowners’ policy should be required to defend parents who are later sued for the harm arising from the bullying child’s conduct.

The facts were these: A grade 8 girl, together with two of her classmates, had bullied, threatened and physically assaulted a fellow student, causing her physical and psychological harm. The parents of the bully were sued in civil court for negligently failing to control their daughter, and for failing to investigate and prevent the bullying she had perpetrated.

The bully’s parents held a homeowners’ insurance policy that provided coverage in cases where their personal acts caused unintentional injury or property damage. Relying on that policy, the parents asked the insurer to defend them in the civil action they were facing, and to indemnify them against any successful claims.

The insurer refused, relying mainly on two exclusion clauses in the policy, including one that excluded coverage if the parents “[failed] to take steps to prevent sexual, physical, psychological or emotional abuse, molestation or harassment or corporal punishment” by “any other person at [their] direction”.

The resulting dispute between the insurer and the bully’s parents was brought before an application judge, who held that the coverage exclusion predicated on the parents’ “failure to take steps” did not specify whether that failure needed to be intentional. Since there was a legal principle that exclusion clauses were to be interpreted narrowly, and since the ambiguity was to inure to the benefit of the parents in the role of the insured, the court found the insurer could not rely on the exclusion in this case. Rather, it was obliged to defend and indemnify the bully’s parents.

On subsequent appeal, the insurer prevailed: It was found exempt from having to defend the parents in court and from indemnifying them in the event that any of the underlying legal claims arising from their daughter’s bullying conduct were successful.

The Appeal Court reasoned that from a legal standpoint, both the exclusion clause in the policy and the various Statements of Claim in the civil actions faced by the parents used the same sort of language that referred to negligence: it referred to a “failure” by the parents to do certain things or take certain steps to prevent harm. The legal claims against the bully’s parents were clearly-worded, and fell squarely within the category of claims for which the insurer had created clear exemptions in the policy.
This meant that the parents – if eventually found to have been negligent – will remain personally on the hook for damages arising from their daughter’s bullying. They were also ordered to pay the insurer’s appeal costs amounting to $15,000.

For the full text of the decision, see:

D.E. v. Unifund Assurance Co. [2015] ONCA 423

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

bully

Cyber-Bullying Law Struck Down

Two years ago, the Nova Scotia government enacted the Cyber-safety Act [the “CSA”], making it the first Canadian province to address the widespread problem of cyber-bullying.

However, just two years after it was proclaimed in force, the CSA was struck down by the Nova Scotia Supreme Court on the basis that it violated the Canadian Charter of Rights and Freedoms. In particular, the court found that the CSA violated the Charter sections that protect the right to freedom of thought, belief, opinion and expression (section 2), and the right to life, liberty and security of the person (section 7).

That decision to strike down the CSA arose in the context of a case called Crouch v Snell, which involved two co-founders of a company. After their business relationship went sour, one of them (Mr. Crouch) aired passive-aggressive online attacks against the other (Mr. Snell).

Mr. Crouch was granted a Protection Order under the CSA, which ordered Mr. Snell not to communicate with him and to remove all social media postings that referred to Mr. Crouch either directly or indirectly.

Against this background, the court considered the provisions of the CSA, which was aimed at text or instant messaging, emails, and “any electronic communication through the use of technology” that is intended or reasonably ought to be expected to “cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation”.

After applying the well-established Charter principles, the court found that Mr. Crouch’s comments about Mr. Snell – while arguably distasteful or unpopular but otherwise non-violent in tone – were a protected form of expression. More generally, the court went on to find that the CSA itself purported to restricted protected forms of expression, and could not be demonstrably justified in a free and democratic society. The CSA was therefore ruled unconstitutional, and was accordingly struck down.

Despite being a case emanating from Nova Scotia, the decision to strike down the CSA is interesting from a more local standpoint as well, since in 2012 the Ontario government passed amendments to the provincial Education Act that include a “cyber-bullying” definition. Although that definition (and the legislation itself) applies only to cyber-bullying in the context of education, it will be interesting to see how Charter-protected freedoms are applied to such statutory attempts to impose restrictions on individual expressions that happen to be conveyed electronically. Time will tell how these legislative initiatives will hold up to such scrutiny.

Your thoughts on cyber-bullying laws?

For the full text of the legislation and the cited decision, see:

Cyber-safety Act, SNS 2013, c. 2

Crouch v. Snell, 2015 NSSC 340 (CanLII)

Education Act, R.S.O. 1990, c. E.2

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com