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Posts from the ‘Damages’ Category

Money is No Object for Divorcing U.K. Couple

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Money is No Object for Divorcing U.K. Couple

Over the years I have often posted about cases in which a Canadian court invites warring former spouses to reflect on the sheer amount of money they are spending on lawyers and court costs, in waging prolonged battles with each other. [Russ:  there are several of these but here’s just one. All too frequently, the costs of repeatedly going to court – often to dispute relatively trifling legal points – can quickly outstrip the monetary value of what’s being fought over, not to mention the benefit of the overall exercise.

This dubious litigation strategy is certainly not confined to Canadian family law litigants.  As reported in a recent article in the U.K. newspaper known as The Guardian, a separated wealthy British couple have already spent over £2 million (about CDN $3.5 million) slugging it out both in and out of court, all to fight over their £6.6m in family assets (about CDN$11.5 million). This despite the fact that they are only the pre-trial stage of the proceedings, with the trial yet to come.

According to one judge, the two have “completely lost touch with reality,” and noted that the trial itself will cost at least another £200,000 (or CDN$350,000) in lawyers’ fees.

The article reports that the former couple, who ran a company that supplies luxury towels and bathrobes to high-end hotels and spas, had been so single-minded embroiled in their conflict that they ran the risk that there would be no money left for either of them at the end.  At least one judge had admonished them along the way, advising that their litigation campaign was a “scandalous waste of court time.”

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

Can You Sue a Cheater for Damages?

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Can You Sue a Cheater for Damages?

These days, not a week goes by without some sort of sexual scandal in the news. Recently, it has focused on allegations of sexual harassment by prominent figures and celebrities but this merely adds to usual crop adultery-scandal coverage that routinely graces the cover of magazines seen while waiting in the check-out line.

I was reminded of an older Family Law decision the other day, which considered the question of whether one person can sue another for cheating on them, or for falsely promising to marry them or have an exclusive relationship with them.

The decision in Lee v. Riley raised exactly this scenario.  The matter came before the court the initially to consider whether the lawsuit actually raised any valid legal claims.  (Under Canadian law, this process serves as a preliminary “screening mechanism” for weeding out those claims adjudged to be entirely without merit, so as not to waste the court’s time (and the taxpayers’ money) on frivolous or otherwise untenable lawsuits.   The prevailing test at the time was whether it is “plain and obvious” that the cause of action cannot succeed.)

In Lee v. Riley the woman had sued the man for what has a rather novel claim.  As the court put it:

The plaintiff [woman] alleges that the defendant [man] failed to advise her that he was involved with another women whom he later married while he was carrying on an intimate relationships with her within a context of an apparent ongoing developing relationship. When she discovered the truth, the [woman] claims that she became ill and has suffered damages. The [woman] asserts a number of causes of action arising out of these facts, including assault, intentional infliction of mental suffering, and fraudulent or negligent misrepresentation.

Although it appeared to have sympathy for the woman, the court dismissed her claim outright, having found no supportable, legal cause of action in her pleadings.  The court wrote:

The [man’s] conduct, as alleged, is morally reprehensible and disgraceful. Nevertheless, the law has never punished either criminally or in civil proceedings, the untruths, half-truths and other inducement which accompany seduction, absent a fraudulent relationship or the presence of a known serious transmittable disease. The [woman] knew who the [man] was and knew the [illegible text] sexual acts being undertaken. The law cannot protect every person against the kind of behaviour the [man[allegedly manifested. Relationships involve risk-taking. People should be honest but it is well known that frequently they are not.

What are your thoughts?  Are there circumstances where the law should recognized a claim in damage by the cheated-on partner?

For the full text of the decision, see:

Lee v. Riley, 2002 CarswellOnt 5558

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

 

 

 

Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

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Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

Although it still technically relates to “family” matters, a recent Ontario civil case was still interesting even though it falls outside the realm of the topics I normally cover.

The court set the stage:

On the morning of Wednesday, June 8, 2011, [the victim] left the house at 8:30 a.m. for his regular golf game. His wife … went to play tennis. Sometime between 9 a.m. and 11 a.m., someone entered the house, proceeded to [the victim’s] home office, used a key hidden in a briefcase to open a locked armoire, and removed jewelry, cash, and a Personal Video Recorder (PVR) which was part of a home security system and was hidden in a closet.  Nothing else in the house was disturbed.  The [victim] contacted the police the same day, and retained a private investigative agency two days later to attempt to locate the jewelry and find the perpetrators.

It turned out to be an “inside job” by the victim’s own first cousin, Esposito, and the victim’s housekeeper.  The court detailed how the victim had hired and occasionally loaned money to Esposito, who had no source of regular income and admitted to a gambling habit.

At the civil trial brought by the victims to have Esposito held liable for conversion and damages, the court had no trouble disbelieving Esposito’s evidence.  Among other things, he initially denied outright that he had any phone conversations with the housekeeper, until his phone records were produced at trial.  These showed 139 calls up to the date of the theft (including 7 on the morning of the theft alone), and only 2 calls afterward.  The phone records also showed lengthy conversations with her that Esposito claimed not to remember, or could not adequately explain.

The court also found that Esposito had first-hand knowledge of the cousin’s daily routine, knew the layout of his home, and had an obvious motive (in the form of the gambling habit).  Especially with his shoddy credibility, the court readily found Esposito to have been either the culprit, or else the mastermind behind the theft.

After finding him personally liable for damages for conversation and trespass, as well as breach of confidence, the court ordered him liable for the value of the jewelry and sums of cash in various currencies.

But what was especially interesting about the case, was he court’s decision to impose a hefty award of punitive damages against Esposito in these circumstances.  The court wrote:

I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties.  [The victim’s] evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.

What’s interesting about this case is that it’s a civil matter – not a criminal one – and is designed to restore the victim to where he was pre-theft, through the award of damages.  Although the court has the right to impose punitive damages in appropriate cases, it’s a bit unusual to have a court increase the awarded damages to account for the fact that the victim and perpetrator were both members of the same family.

What are your thoughts on that?

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

 

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

A few weeks ago, I reported on the appeal-level decision in the case of “revenge porn” where a woman’s ex-boyfriend had posted explicit photos of her on a pornographic website and showed them to his friends, all without her consent. She sued him for civil damages to compensate for the resulting humiliation.

The existence of this type of case is not unexpected, but it’s not as prevalent as one might think. Despite the widespread use of social media, and the immediacy with which even ill-advised messages can be sent, there are surprisingly few court decisions that involve a person seeking civil damages for an internet-based invasion of privacy, whether through hacking, or by posting without the person’s consent.

Part of the reason might be the impact of the criminal law: In December 2014, the Canadian Criminal Code was amended to add s. 162.1(1). The provision makes it a crime if someone “knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person” knowing that he or she did not give their consent. The term “intimate image” is defined to include a visual recording, including a photographic, film or video recording, “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity”. On conviction as an indictable offence, the penalty can be up to five years’ imprisonment.

So far, there are only a small number of reported cases in which anyone has been charged with an offence under s. 162.1.

  • In R v. P.S.D., a young man in a volatile, on-again/off-again relationship with a young woman was charged after he took partially-clad images of her without her consent. He also sent the pictures to two friends, with instructions that they should save them, all with the intent to cause her emotional harm. The blurry, poor-quality photos were taken with his cellphone, in a manner that clearly indicated she had not consented, and showed portions of the woman’s bare breasts. The man was given a suspended sentence, after being given 90 days’ enhanced credit for the 60 days he spent in pre-trial custody.
  • In v. Calpito, the male accused, in his early 20s, confessed to having posted seven nude photos of his former girlfriend on Instagram after their romantic relationship had ended.  The photos were viewed by the woman’s large circle of friends, and even by her employer. The woman described the devastating effect of his actions on her life and university studies. The man was sentenced to a conditional discharge with three years’ probation, together with restrictions on his internet use and a significant term of community service.

The enactment of this new criminal offence, with its potentially hefty sentence, has surely had a chilling effect on the need for civil remedies as well. It means that Canadian law is well-poised to thwart the impulses of spurned ex-lovers to wreak revenge on former partners by oversharing intimate images.

For the full text of the decisions, see:

R v. P.S.D., 2016 BCPC 400 (CanLII)

v. Calpito, 2017 ONCJ 129, 2017 CarswellOnt 340

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

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

An unusual case arising from a man’s lawsuit over a baby he didn’t want has now been heard by the Ontario Court of Appeal.

As I reported here, the facts involved a man and woman who had a brief romantic fling in 2014, lasting less than two months. After going on a few dates, they had unprotected sex on several occasions. Although it was not strictly proven before the court, the man recalled his understanding, from various things the woman said, that she was taking birth control pills and did not intend to conceive a child.

But a few weeks after their short relationship ended, the man, in his early 40s, found out that the woman, in her early 30s, was pregnant. She went on to give birth, at which time it was confirmed that the man was the father.

The man, who was a budding doctor, sued the woman in civil court for over $4 million, claiming her fraudulent misrepresentation had deprived him of the choice of when and with whom to share the responsibility of parenthood. The court framed his cause of action in these words:

Although it was not presented in this way, the claim can be viewed as a tort claim for involuntary parenthood made by one parent against the other. It is clear that the alleged damages do not relate to a physical or recognized psychiatric illness. In essence, the damages consist of the [man’s] emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want. Although the claim is not for the direct costs associated with raising the child, all of the damages claimed by the [man] are the result of consequences flowing from the unwanted birth of a child, albeit unwanted only by the father.

(And it’s important to note that the man was suing for emotional harm of the non-pathological variety only; he was not suing for physical harm or for monetary damages, such as for any undesired child support obligations he may have. On that latter point, a separate Family Law suit, disputing his obligation to pay child support based on the woman’s alleged fraud and deceit, was also underway and would be heard separately).

The lower court, in striking out the man’s claim, held that his allegations disclosed no reasonable, legally-recognized cause of action, because a claim for fraudulent misrepresentation – which is a tort in Canadian law – was aimed at compensating the man for any financial damages, not emotional ones. In other words, the man was trying to claim for the types of damages that were simply not actionable through a fraud claim.

In its recent decision, the Ontario Court of Appeal agreed, adding that the woman’s alleged lie as to her being on birth control – even if it was proved that she told it – was not enough to form the basis of the man’s claim for emotional injury. Plus, any harm the man suffered was not tantamount to a “personal injury” in the traditional legal sense.

Do you think the original decision – now affirmed on appeal – was correctly decided? What are your thoughts?

For the full text of the decision, see:

PP v DD, 2017 ONCA 180 (CanLII)

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

 

 

 

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (CanLII)

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

“Revenge Porn” Case Goes Back to the Drawing Board

“Revenge Porn” Case Goes Back to the Drawing Board

A year ago I reported on a case in which a young woman had been awarded over $100,000 in damages from her former boyfriend, who had engaged in “revenge porn” after their break-up. Without her consent, he had posted explicit images of her online, and shared them with members of their mutual social circle, much to her extreme humiliation.

Because he had declined to participate in the lawsuit by filing any sort of defence, the woman was able to obtain a default court judgment in his absence, in which the ex-boyfriend was found liable under the civil law for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy. He was held responsible to pay for her damages as assessed, with the breakdown being $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages, plus costs.

However, as a result of a recent decision by the Ontario Divisional Court, her lawsuit – which was launched four years ago – has now been put back to square one, and the now 24-year-old woman is awaiting a statement of defense from the man, so that a full trial can proceed with his participation.

The reversal is essentially based on procedure, not merit, so time will tell whether she is vindicated in the end.
In terms of the legal process, the matter has gone forward-then-back because the original order, by Justice Stinson, was later struck out by a second judge, Justice Dow, in order to give the man a chance to participate.

The woman asked unsuccessfully for permission to appeal that ruling, claiming that Justice Dow had noted that the ex-boyfriend was deliberately ignoring the lawsuit, but then went on to improperly consider other factors and give him a second chance anyway. Permission to appeal was denied in the most recent decision by Justice Kitely in January 2017, since she found no legal error in Justice Dow’s reasoning.

So, three judges’ rulings later, the matter has been sent back to essentially “start over” before a new judge.

But the significance of the case still lingers, because the original decision by Justice Stinson from a year ago was very legally noteworthy at the time, not only for implicit recognition of the invasion-of-privacy claim from this sort of on-line behaviour, but also due to the hefty damages liability imposed on the ex-boyfriend.

What are your thoughts on this case?

For the full text of the decision, see:

Jane Doe 464533 v N.D., 2017 ONSC 127 (CanLII)

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

Woman Liable to Neighbour for Almost $70,000 in Damages Because of Facebook Posts

peeping-neighbor

Woman Liable to Neighbour for Almost $70,000 in Damages Because of Facebook Posts

Thinking about posting something mean about your no-good Ex on Facebook? Read this first.
In a recent B.C. Supreme Court decision called Pritchard v. Van Nes, a woman was found liable to pay her neighbor $50,000 in damages for defamation, plus another $15,000 in punitive damages – all because of some Facebook posts that she and her Facebook “friends” had written about him.

She was held liable in nuisance for another $2,500.

The civil decision has very broad – and potentially very serious – ramifications in all areas of the law, including Family Law.

The woman’s defamatory Facebook post had been spurred by a dispute she had with her neighbor over some ordinary things: parking, loud noises and parties, a family dog, and the woman’s fish pond and waterfall.

Prompted by the neighbour’s complaints, the woman took to Facebook to air her grievance about him, calling him a “nutter” and a “creep”, and implying that he was filming her and her children “24/7”. Other comments hinted that was unfit in his job as teacher, and that he was a pedophile. The woman’s friends added comments to her Facebook page in supportive response, and also shared the post with others. One friend even shared the woman’s initial comments on the neighbour’s own Facebook profile, and then contacted his school principal by e-mail.

Even though the woman removed her original inflammatory posts about 24 hours later, she obviously could not remove the copies that had been replicated through various Facebook “shares”.

The neighbour sued for defamation and nuisance, and when the woman did not file a response, he succeeded in obtaining a court judgment in default, granting him almost $70,000 in damages.

In attaching civil liability to the woman for her Facebook-based conduct, the B.C. court made some interesting – and arguably concerning – conclusions about the responsibility that a Facebook poster or other social media user might have, even for posts that are later shared by others without the original poster’s knowledge or express permission.

Specifically, the court drew the following conclusions:

• The woman was liable for her own defamatory comments made via her Facebook profile.

• She was also liable for the republication of comments by her Facebook “friends”, and for the e-mail to the man’s school principal.

• Finally, she was also liable for any new defamatory comments made by her Facebook friends about the man, in response to her initial Facebook post.

The court’s extension of the woman’s liability for the conduct of her Facebook friends – over whom she has no direct control – is a legally noteworthy aspect of the court’s decision. It was based on the court’s conclusion that the woman had “constructive knowledge” that the posts were likely to be re-posted and repeated by her friends on Facebook. The court also pointed to the woman’s failure to rebut any of the new negative comments that the friends posted.

The decision raises important issues of how to impose responsibility for defamation in a world dominated by social media, and calls into question the appropriate limits of responsibility where rapid (and sometimes careless) online dissemination of information is common.

The decision is also highly pertinent to Family Law situations, where the urge to vent one’s negative separation/divorce/custody stories on Facebook and other media platforms is compelling – and often it seems – both irresistible and irreversible.

Was this stretching the law of defamation in new directions? Probably. Should the law be stretched this far? Let us know your thoughts.

For the full text of the decision, see:

Pritchard v. Van Nes, 2016 BCSC 686 (CanLII)

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

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

condom

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

A recent Ontario case gives rise to a unique legal question: Can one parent sue the other for unwittingly being forced into parenthood?

The man, a 42-year old medical doctor and the woman, a 37-year old medical practitioner, met through a mutual friend and started dating. After their second date they had sex in the woman’s apartment, but not before the man asked the woman if she had any condoms. She said she did not, but indicated that she was “on the pill”. Afterwards the man stayed the night and left the next morning.

What followed was a series of eight or nine subsequent dates, and they had sex each time. The subject of condoms came up again during one of those occasions, but the woman did not say or do anything to suggest that her prior statement of being “on the pill” was no longer true, or that it had never been true in the first place.

After about 10 dates they mutually agreed by phone to cease the sexual aspect of their connection and revert to a “just friends” platonic relationship.

Soon after, the man was shocked to receive a text from the woman, advising that she was 10 weeks pregnant with his baby. After she gave birth, the woman refused to allow the man to see the infant, despite his stated willingness to provide financial support and establish a relationship with the child.

Eventually, after they agreed to a child support arrangement, the man then took a legally-unusual step: He sued the woman for $4 million in damages “because he [had] been non-pathologically emotionally harmed by his unplanned fatherhood.”

In particular, the man claimed that he had been tricked into having recreational sex with the woman, had relied on her “on-the-pill” statement in deciding whether to engage in sexual activity, and had been emotionally harmed by being deprived of the choice to fall in love, marry, enjoy married life, and then — when he and his wife thought “the time was right” – to have a baby. Although he made it clear he was not trying to dodge his child support obligations, he claimed he had been harmed because he was just at the beginning of his medical career and was not at the stage where he wanted to have a baby with “some random woman”.

As the court explained the man’s position:

[The man] is not against being a father, but his passionate argument is that by [the woman’s] fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

However, in examining this novel claim, the court found that the man had framed his cause of action incorrectly, by relying on the tort of fraudulent misrepresentation. That tort was used to compensate for damages for economic loss, i.e. restore the injured party to the financial position he or she was in previously.

Admittedly, the man had likely established all the other necessary elements of fraudulent misrepresentation (i.e. a false statement, knowledge that the statement is false, an intent to deceive, and the statement inducing the man to act). But what he could not prove was that he suffered economic damages. Aside from having to pay child support (which the man was not resisting), he had no financial losses from the woman’s pregnancy or childbirth. He was not married to her, was not obliged to marry her, never lived with her, and never established any long-term relationship. He did not contract any STDs, and would not experience any disruption of his career as a doctor. The court pointed out that:

… compensation for fraudulent misrepresentation … is designed to restore the injured party to the financial position he or she would have been had the wrongdoing not occurred. [The man] obviously cannot be restored to the emotional state of non-fatherhood and so his claim for non-pathological emotional harm makes no sense for the conventional use of the tort of fraudulent misrepresentation.

In other words, the man was trying to use the tort of fraudulent misrepresentation – which usually compensates for financial damages – to further his asserted claim for emotional harm. The court concluded that this made his action “a novel one” because it would “expand the scope of fraudulent misrepresentation and take it into new territory.” The court ultimately concluded that this was both unnecessary and undesirable on legal policy grounds.

The court struck out the man’s lawsuit as disclosing no reasonable, legally-recognized cause of action, and refused to allow him permission to amend it to state the tort claims differently.

For the full text of the decision, see:

PP v DD, 2016 ONSC 258 (CanLII)

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

Tempted to Post Some Revenge Porn? Read This.

revenge

Tempted to Post Some Revenge Porn? Read This.

For those embittered Ex’s who are tempted to wreak revenge on their former partners after a break-up, take note: the Ontario Courts have just expanded the realm of tort law to cover certain breaches and invasions of privacy. In one very recent case, it cost a disgruntled ex-boyfriend $100,000 in general, aggravated and punitive damages.

In Jane Doe 464533 v. N.D., a woman’s ex-boyfriend had posted an intimate video of her online at a pornography website after their break-up, without her knowledge or consent. He also showed it to members of their mutual social circle. The court described the back-story this way:

The factual background may be summarized fairly briefly. The parties went to high school together in a small Ontario city, where they started dating while they were both in Grade 12. Although they broke off that formal relationship, they continued to see each other romantically throughout the summer and the fall of 2011. By the fall of 2011, the plaintiff and the defendant were both 18 years old.

In September 2011, the plaintiff was living in another city while attending university. Despite the fact that they had broken up in July 2011 and were no longer “boyfriend and girlfriend”, she and the defendant communicated regularly by Internet, texting, and telephone and continued to see each other when she returned to visit her parents’ home.

In August 2011, the defendant began asking the plaintiff to make a sexually explicit video of herself to send to him. For some time, she refused to do so, but the defendant kept asking her repeatedly. He sent her several intimate pictures and videos of himself, and told her that she owed him a video of herself in return. She did not want to do so, but she ultimately recorded an intimate video of herself in November 2011. Before she sent it to the defendant she texted him, telling him she was still unsure. He convinced her to relent, and reassured her that no one else would see the video. Despite her misgivings, due to pressure from the defendant, she “caved in” and sent the video to him.

In early December 2011, the plaintiff learned that the defendant had posted the video she sent him on an Internet pornography website under the “user submissions” section of the website. As posted by the defendant, the video was titled “college girl pleasures herself for ex boyfriends (sic) delight.” She further learned that the defendant had been showing it to some of the young men with whom they had attended high school. She later learned that the video had been posted online on the same day she had sent it to him, and that its existence had become known among some of her friends.

After finding out about the video, the woman was “devastated, humiliated, and distraught”; she became severely depressed. She experienced panic attacks and had to see a school counsellor for over 1.5 years to deal with the emotional fallout. The court also noted the effects on the woman were long-lasting:

Even today, more than four years after the incident, she is emotionally fragile and worried about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships. She continues to be distraught about the incident and afraid that these feelings will haunt her for a long time to come.

The court also noted that although the video was actually on-line for only about three weeks, there was no way of knowing how many off-line copies had been made and were still in existence.

The woman successfully sued the ex-boyfriend for breach of confidence, intentional infliction of mental distress, and invasion of privacy (and obtained default judgment against him since he had not filed a defence). Her damages were set at $100,000, including $25,000 in punitive damages to reflect the ex-boyfriend’s high-handed, reckless and arrogant disregard of the woman’s rights, as well as the fact that he had not apologized or shown remorse.

For the full text of the decision, see:

Jane Doe 464533 v. N.D., [2016] O.J. No. 382, 2016 ONSC 541

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