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Posts from the ‘Facebook’ Category

Facebook Steps in to Counteract “Revenge Porn”

Facebook Steps in to Counteract “Revenge Porn”

Recently I posted a few blogs that dealt with the criminal exposure and privacy interests that can be placed at stake when one former relationship partner decides to post salacious images of the other partner without his or her consent, in what has been colloquially referred to as “revenge porn”.

According to a recent announcement by Facebook’s Global Head of Safety, Antigone Davis, the company has deployed custom software tools in the form of photo-matching technology, to prevent users from uploading nude or sexual images of others on its social media platform.

These steps are in addition to exiting measures and policies forbidding users from posting revenge porn; if they are caught doing so (after being flagged by fellow users), their accounts are subject to being deleted. Now, according to company representatives, Facebook also intends to use computer software to identify revenge porn and to automatically match it so that images cannot be posted multiple times.

The move by Facebook may have been initiated in partial response to a Northern Ireland lawsuit by a 14-year old girl who accused the social medial giant of failing to take active steps to prevent a man from repeatedly posting nude images of her without her consent. She sued Facebook directly by way of a pending claim to be brought before the Northern Ireland court, for misuse of her private information, for negligence, and for breach of the U.K. Data Protection Act. That case is still pending.

This initiative by Facebook will also add teeth to existing legislative measures that aim to counteract the instances of revenge porn postings generally. Currently in Canada, the enactment of the Protecting Canadians from Online Crime Act (S.C. 2014, c. 31) already makes it illegal to engage in cyberbullying, including posting revenge porn, and allow police to obtain information about an internet user and obtain a warrant where they have “reasonable grounds for suspicion”.

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

Should Parents Be Barred from Posting About Their Family Case Online?

FB

Should Parents Be Barred from Posting About Their Family Case Online?

In a prior blog we recounted an unusual case of a 14-year old girl, estranged from her biological father, who had written to the father’s parents asking them for tuition so she could go to private school. The matter eventually went to court, and although the case has many interesting aspects, one of lesser ones is actually the most far-reaching.

The court heard evidence that in her writings and posts online, the 14-year-old girl had referred to the litigation. In reflecting on the potential repercussions, the court considered the likely emotional harm to the father’s other children (who were not aware of the litigation or even of the existence of their step-sister) were they to find out about the proceedings inadvertently. Although the court did not specifically order the girl to stop posting, it did order that part of the court file should be sealed, and that the parties be referred to by their initials in the proceedings and in the documents filed in the public record.

A similar issue arose in an earlier case called C.M.G. v. R.G., where the court file was ordered to be sealed, in view of the possibility that the children of the marriage might suffer emotional harm as a result of the lawsuit, especially if other children learned about the facts of the case. The court described (and acknowledged) the mother’s concerns in this regard:

[The mother] fears that the children’s peers may learn about this proceeding and that they may be subjected to embarrassing and potentially damaging situations as a result. She submits that the nature of the pleadings themselves may result in the children being bullied. She believes this is more likely in an age where information travels very quickly through social media sites and on the internet, particularly among young people. [The mother] believes the children are especially vulnerable to bullying on Facebook. She submits that this is particularly troubling given a recent study by the Canadian Medical Association which she tendered as an exhibit that found that suicide is on the rise among young girls and is currently the second leading cause of death among young Canadians. The [mother] is concerned that the potential publicity generated by this case would be harmful to the children given their heightened vulnerability.

The court acceded to the mother’s request, finding that “protecting the children in such circumstances is a social value of superordinate importance.”

Although neither of these cases involves the court specifically preventing the parties from posting online, they raise a good question: In this modern era of instant information, should Family court cases be sealed to protect children?

And should the parties be banned outright from posting information online?
What are your thoughts?

For the full text of the decisions, see:

C.M.M. v. D.G.C., 2014 ONSC 567

C.M.G. v. R.G., 2012 ONSC 2496

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

Husband Does Some Sleuthing on Wife’s Facebook Apps – Is the Uncovered Evidence Admissible?

FB spy

Husband Does Some Sleuthing on Wife’s Facebook Apps – Is the Uncovered Evidence Admissible?

We wrote earlier about the decision in Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984, which considered the issue of whether a support-paying husband should be indirectly footing the bill for his ex-wife’s financial irresponsibility post-separation.

But another aspect of that case is equally interesting: As part of the evidence that was put before the court on the question of how much spousal support he should pay, the husband had managed to do some sleuthing. On the morning of the trial, he had input some credit card information disclosed by the wife as part of their family litigation, to uncover various charges she had incurred on Facebook for an on-line gaming App known as “Slotboom”. He brandished this late-breaking evidence as a sort of “smoking gun”, to suggest to the court that the wife had a gambling problem. As the court explained:

A number of entries on [the wife’s] Visa statement denoted “Facebook” with invoice numbers beside them. On the morning of the commencement of trial, [the husband] advised that he had entered these invoice codes on Facebook, along with the last four digits of [the wife’s] credit card number (which appears at the top of all the disclosed statements). Facebook then returned details of the purchase which, in this case, included the name of the game for which the purchases were incurred, which was “Slotboom.” [The wife’s lawyer] objected to the admission of this evidence on a few grounds. First, she objected that this was too late, being the beginning of trial. …

The court adjourned briefly to allow the wife’s lawyer to review the documents and make further submissions; eventually the lawyer objected on the basis that the invoices should not be admitted because they amounted to “unauthorized use of [the wife’s] private credit card information and thus are unwarranted violations of her privacy interests.”

(And by way of explanation, the wife initially claimed that the Facebook invoices were for “games that were helpful for memory” at an average cost of $5 per day. However, when pressed, she conceded that they included charges for a game called “Slotboom” which featured an online slot machine, but maintained that it was skill-based. She later admitted to having done some online gaming in the past, but had not done so for the past year. Unfortunately, this testimony was undermined and proven untrue by the Facebook invoices, which for example showed 12 separate transaction in a single 5-hour period, totalling $435.)

The lawyers for each side could not come up with any precedent law on the issue of whether these invoices should be admitted as evidence, but after some reflection the court found that they should.

In this particular case, the information in the invoices was relevant to the family law matter – and spousal support in particular – because the husband had alleged that the wife had been dissipating her assets, and that a gambling addiction is at least part of that problem. (And this allegation was not a surprise to the wife, since the husband had made these claims right from the beginning). The documents would have been something the wife was required to produce in the course of the family litigation any case, had she been asked to by the court. The husband had uncovered the Facebook invoices using only the credit card information that had been properly disclosed to him; moreover there was no allegation that he had done anything with either the credit card number nor the Facebook invoices beyond what was directly relevant to the litigation.

Finally, the court noted that in the common law (as opposed to criminal law) there is no general power by the court to exclude evidence on the ground that it was wrongfully obtained. To the contrary, there is a general rule of inclusion, i.e. that the trier-of-fact should have the benefit of all relevant evidence, no matter how it was obtained. Nor does the Charter have any application between these kinds of disputes between private individuals.

The Facebook evidence was therefore ruled admissible.

Do you think this was the right outcome? What are your thoughts?

For the full text of the decision, see:

Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984

 

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

Should Court Stop Dad From Posting Pictures of Child on Facebook?

FB posting

Should Court Stop Dad From Posting Pictures of Child on Facebook?

In a recent Ontario decision called Rego v. Santos, the court had to grapple with a very modern-day issue: whether to prohibit a father from posting pictures of his child on the internet, in what was essentially a social media “publication ban”.

The parents of the now-four-year old child had never married; they met at work and by all accounts had an intermittent relationship. The mother claimed they were sexually intimate on only one occasion, and even denied the father’s paternity until she was reluctantly conceded otherwise based on paternity test results. The father, in contrast, claimed they had good rapport until a minor incident occurred which changed the mother’s disposition toward him. She thereafter made it clear that she wanted the father out of her life and away from the child, and eventually obtained a court order for sole custody, with specified access to the father. But when the father tried to exercise that access, he was refused and actively blocked in his attempts by the mother.

Against this background, the father applied successfully to have custody of the child himself, pointing to the mother’s obstructionist tactics respecting access, and her unwillingness to foster a relationship between the father and the child. The court granted the father’s application for a custody changed, and with access to the mother.

In the context of granting this order, the court entertained a complaint by the mother to the effect that the father had shown poor judgment in connection with this internet use; specifically that he had posted comments about and pictures of the child on Facebook, despite an earlier court order to the contrary. One of the posts included a comment by the father as follows:

To [my daughter] – my “angel”, 2 years ago I was the first to hold you, I was the first one to feed you. Today you turned 2 and although I am unable to see you and be there for you. One day you will ask why, and when that day comes, I will simply tell you to ask your mother. Just know this, I love you … Happy Birthday.

The mother objected on the basis that such postings were actually intended by the father to draw attention to himself, to portray the two parents and child as an intact family, and to garner sympathy for his family situation from other social media users.

In refusing to grant the mother’s sought-after publication ban, the court wrote:

The internet is a relatively new communication forum that does not have established rules of play. Users are on their own to show respect, accuracy and good grace in their publications. [The father] in the past demonstrated his great pride in his daughter that lead to postings of the child’s pictures. I think he could have been a little more tactful in his posted messages, but as just stated, there is a wide range of comments that can be made with impunity. Some people are concerned that children can be located by persons who wish to do harm. Care must be taken to avoid descriptive or locational information in pictures or messages.

[The mother] is a very private person, perhaps obsessively so. As she testified, only her closest friends even know about [the father] as [the child’s] father. The solution is for [the father] to be circumspect in his posted messages, and for [the mother] to be more tolerant of internet communication. I see no reason why [the father] should be interdicted from, or even regulated in his use of internet postings. The only harm I can see from postings would be an intrusion into [the mother’s] unreasonable demand for all-encompassing privacy. If he were allowed to do any postings even under court restricted conditions, my concern is that [the mother] would find fault, and require court attendances to allege contempt.

Another facet of [the mother’s] concern is that persons other than [the father] may make postings. The [mother] may believe the [father] is encouraging others to do so, but that is not probable. In any event, it is not possible for this court to require [the father] to control who else posts messages on the internet.

The court accordingly refused to grant an order restricting the father from posting pictures of family or comments on the internet, and vacated the earlier court order that had purported to prevent him from doing so.

What are your thoughts? Should courts issue a Facebook “publication ban” in high-conflict family law cases? Or in all cases?

For the full text of the decision, see:

Rego v. Santos, [2014] O.J. No. 3341, 2014 ONCJ 330

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 our main site.

In Court, Must a “Private” Facebook Page Stay Private?

FB data

In Court, Must a “Private” Facebook Page Stay Private?

In a recent Nova Scotia case called Conrod v. Caverley, the court considered an evidentiary question of modern-day importance: Can a court order a plaintiff to disclose his or her “private” Facebook page?

The plaintiff had sued the defendant in connection with a motor vehicle collision, claiming that the injuries she suffered had left her with severe neck, back, arm and leg pain. Since the accident she had been unable to return to work; she claimed a loss of enjoyment of life, including an inability to fully participate in social and recreational activities. She also complained of impaired concentration, which affected her ability to spend time surfing the internet.

In response to these claims, the defendant went to court to ask for an order requiring the plaintiff to produce a full, printed copy of her Facebook profile, including the information and photographs that – due to her privacy settings – were only visible to her “friends”. He also asked for a printed copy of her Facebook usage history, including her login/logout information. He claimed that this information was relevant to her damages claim relating to loss of enjoyment of life, as well as her complaint that she could not concentrate or participate socially to the extent she had done before the accident.

In making its decision, the court relied heavily on two prior Ontario cases in which the same issue was raised, also in connection with motor vehicle accidents.

In Leduc v. Roman, the defence had asked for an order allowing it to see the plaintiff’s entire Facebook profile, including the information and photographs that had been set as private. Ultimately, the court declined, finding that it was merely speculative that – given the nature of Facebook – the contents of a “typical” private Facebook profile would likely include material relevant to the litigation. Rather (and as with all types of evidence), the plaintiff could be cross-examined in the usual fashion on what potentially-relevant content might be contained there.

In making this ruling, the court in Leduc relied on the reasoning in an earlier similar decision, Murphy v. Perger, which also involved a request for access to the private portion of a plaintiff’s Facebook profile. In that case, the judge had outlined the following principles governing Facebook information sought to be used in accident litigation:

• It is reasonable for a court to infer that, given its social-networking nature, Facebook contains some content that is relevant to the issue of how the injured plaintiff has been able to lead his or her life since the accident.

• Where the party sets their entire profile to “private” (so that the public page consists only of name and possibly photo), then a court can infer – given the social networking purpose of Facebook – that users make personal information available and photos available to others.

• Where a party to litigation has both a “private” and “public” profile, it is also reasonable to infer that the content of both profiles will likely be similar. In the right circumstances, a court is therefore entitled to order that the private profile be produced.

Returning to the Nova Scotia case, the court applied those principles to the facts at hand: Looking specifically at the plaintiff’s public Facebook page, the court declined to jump to the conclusion that it necessarily contained information relevant to her litigation claim. Nor could it conclude based on that same publicly-accessible information that the contents of her private page would likely be relevant and should be ordered produced.

On the other hand, the court did order that the plaintiff’s log of internet usage with respect to her Facebook account be produced; that information was directly relevant to her claim that the accident injuries had affected her ability to concentrate, and was therefore relevant.

For the full text of the decision, see:

Conrod v. Caverley, 2014 NSSC 35 (CanLII)

Leduc v. Roman, [2009] O.J. No. 681; 2009 CanLII 6838 (S.C.J.)

Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.)

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

 

How Much Should Parents Share on Facebook?

share

How Much Should Parents Share on Facebook?

Facebook may have started out as a networking site for teens, but these days many parents have their own Facebook account as well. Ostensibly, its purpose is to link them to family and adult friends with whom they want to stay in touch, or to share news, events and milestones.

But as I have written before , information on Facebook and other social media sites can be used / misused by parents in family litigation; for example one parent can gather incriminating or unflattering information about the other.

But even leaving aside this “Facebook-as-evidentiary-weapon” approach, separated and divorcing parents should be aware that the information they innocently post on such sites can be harmful to the children.

Indeed, in a B.C. custody case called Bain v. Bain, the court concluded that the father’s decision to post photos of his child on Facebook demonstrated that he had questionable judgment as a parent. In ordering the father to both remove the photos and refrain from posting comments about the children in the future, the court wrote:

[The father] has made available on the internet by way of Facebook, pictures of the children in their very early years. There is a danger of publishing such pictures in this day and age, which should be apparent to any parent, let alone the father of two small daughters.

But threats to a child’s safety, privacy, or emotional well-being can be indirect as well. For example, a teenaged child may be embarrassed to have a parent post pictures on Facebook of a recent Vegas holiday, or flaunting a new (post-divorce) romantic interest. A child may lose respect for a parent after finding inappropriate comments or posted photos of behavior that is questionable for an adult, let alone a parent – even if that conduct takes place during non-custodial time. The parent-child relationship can be adversely affected if the child learns about the parent’s social life or relationships not directly, but rather through status updates.

The key is to view the posted information from the child’s perspective: What may seem relatively innocent to share among adult friends can be mortifying to a child who is at a development stage where the opinions and attitudes of peers is paramount. For this reason, parents need to turn their mind to adjusting privacy settings on Facebook and other social media sites like Facebook, to protect their children if necessary.

What is the bottom line? All parents – whether separated, divorced, or otherwise – need to understand how the modern trend towards living life as an open book on the internet might affect their kids. Remember: “What Happens in Vegas… Ends Up on Facebook”.

For the full text of the cited decision, see:

Bain v. Bain, 2012 BCSC 1019 (CanLII)  http://canlii.ca/t/fs0sq

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.

So You Want to Be A Taikonaut?

So You Want to Be A Taikonaut?

The Globe and Mail recently reported:

In the coming days, the People’s Republic of China will become the eighth country to see one of its female citizens in space, and just the third country to put them there with its own technology.

But the name of the first female taikonaut remains a closely guarded secret in the countdown to the expected launch of the Shenzhou-9 spacecraft on Saturday. And the woman who is sure to be hailed as a Chinese national hero  …

So do you think you have the right stuff?  Here are some qualifications China is seeking in their taikonaut:

      1. to be married
      2. to have given birth naturally
      3. to be physically and mentally mature
      4. to be odour-free
      5. to have flawless skin
      6. to be a Peoples Liberation Army fighter pilot

Some of the top contenders include Major Liu who has been described as ‘a quite girl’ with ‘a sweet smile’ and Capt. Wang who apparently impressed recruiters as ‘smart, lively and eager to excel’.

Hopefully the successful candidate will not get a pimple or blemish otherwise China may have to delay the launch.

So what do you think of China’s taikonaut screening process?

Please read our responses or submit your own comments.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

You can read the Globe and Mail’s full report here http://bit.ly/KMCdJ1

REVISED Facebook as a Source of Evidence In Family Law: Part 1

One of our readers brought to our attention the following comment:

In Jesmer it was actually the father’s girlfriend who wrote the Facebook message to the mother’s sister (not the father’s sister).  She had testified that the father was a capable parent, and then she e-mailed the mother’s sister saying he wasn’t and that she would testify as much for a fee.

The court therefore found that none of the father’s girlfriend’s evidence was of any value and ordered a parental capacity assessment

So we went back to our original research and have revised our earlier blog accordingly.  Thank you to Spinnaker for the comment and bringing this to our attention.  So without further ado, here we go …..

REVISED Facebook as a Source of Evidence In Family Law: Part 1

Facebook, Twitter and other social networking sites are now a routine part of many people’s lives, and have become a convenient means of interacting with others.  What some people do not realize, however, is that postings and activity on Facebook and similar sites can be used in family litigation – and usually in unexpected and unforeseen ways.

For example, in a very recent Ontario decision called Jesmer v. Delormier, the father applied to the court for access to his child, a boy named Wyatt.  The mother opposed this, claiming that the father and his family should have no access to Wyatt whatsoever.
After an initial hearing, the court found the father should have increased exposure to the son on a “baby steps” basis, and ordered that the father should be given access, but only on a supervised basis.   However, in the months since, the father never really got a chance to fully exercise it, because the mother threw up obstacles to thwart it.

The matter came back before the court for review.    As part of that hearing, the court was asked to consider new evidence relating to concerns about the father’s parenting ability, sparked by a Facebook message that the father’s girlfriend had written to the mother’s sister:

Hi Meagan,

Okay so what I wanted to say. I lied to the judge and it was wrong. I’m hoping this isn’t going to backfire but I think that the best interest of Wyatt is with Alex [the mother] and that she is right in some ways I think Craig [the father] should have supervised visits if anything but Craig is not capable of caring or looking after kids. He has a violent anger which is why I didn’t say the truth that day I was scared and which is why I left. Now there are numerous things I can bring to the judge about Craig and how he is unfit to have any kids without supervision. I do think Wyatt should know him but I wouldn’t trust Craig with any kids either. I did everything and he would leave at long times with me taking care of the kids he never changed Leiland’s diapers I was always the on [sic] to change them. He yelled at me and the kids many of times. I am willing to tell the judge this but I don’t want to be named. Not sure how this would happen though. All I would like out of this is 15,000. I could use the money not going to lie.

I hope you all have a merry xmas and a happy new year.

This Facebook message came to the court’s attention, and the hearing was re-opened to allow the court to consider the effect of this new information.  When confronted, the father’s girlfriend claimed that the Facebook message was untrue;  she said she had simply sent it in a fit of fury after a fight with the father.   (She had left the home they shared but when she called later to speak with him, an unknown woman answer the phone).  She said she wrote the Facebook message to hurt the father.

The court found that the girlfriend’s explanation with respect to the Facebook message simply did not ring true.    And whether true or not, the fact that she even sent it displayed “a complete lack of judgment and a total disregard to [the child] Wyatt’s best interests”.   Her suggestion to the sister that she would accept $15,000 in exchange for her testimony could only be to further her own interests, and not a means to hurt the father.  The court also noted that she came up with the current explanation a full three months after she posted the Facebook message, and – conveniently – at a point when she and the father had apparently reconciled.  Accordingly the court could not determine whether the girlfriend had lied in court or had lied on the Facebook message.  It therefore disregarded her evidence in its entirety.

Similarly, in a case called M.J.M. v. A.D., the court reviewed the father’s Facebook page as evidence of his character and his credibility.  It observed:

48     With respect to the father’s complaint that the mother is attempting to fool the Court about him, I have heard the evidence and observed the demeanour of both parties while giving their evidence.

49     The mother’s demeanour was straightforward and direct. She answered the questions she was asked and did not try to present herself in a better light. This positively affected her credibility.

50     The father’s demeanour was at times overly self-confident. At times in his cross-examination he answered questions with questions and was evasive. At times he was contrary; at times he shrugged when answering questions so that he displayed and conveyed a challenging “so what” attitude. He gave the grandmother the “finger” during her evidence, which was remarked upon by the grandmother and which I observed. This was both disrespectful and displayed the kind of dismissive attitude he has to the mother’s family and the mother. He did not present himself in the best light at a time when the child’s best interests called for the same. All this negatively affected his credibility.

51     Where there is a difference between the evidence of the mother and the evidence of the father, I accept the evidence of the mother.

52     In addition to the conflict between the parties, the father has demonstrated and displayed publicly (at least to his some 95 “friends” on his Facebook page) his disregard and callous lack of consideration of the mother, and his demeaning and dismissive attitude to her. On his Facebook page is a link to another site entitled “[the father] has a crazy x!”. Additionally, the father has an obscene and crude reference to a “porno actor” on his earlier Facebook page. The father refers to his Facebook page as “fun” and a place to have “fun”. This is hardly funny in the unique circumstances of this case. I also note that one of his “friends” on his Facebook page is his common-law partner’s twelve-year-old daughter. This child has been exposed to the father’s rancour and attitude to the mother. At the same time, the father has posted pictures of the child on his Facebook page. He has thereby linked the child to his rancour to the mother and, despite her young age, also exposed her to adult-appropriate matters which the father thinks are fun. That the father would do this is surprising and speaks to the issue of the whether the father can protect the safety of the child absent a detailed Court order. This does not speak to an adult consideration of the child’s best interests. I ordered him to remove the child’s picture from this site and not to post the child’s picture on any other Internet sites. In my opinion, posting her picture like this both puts the child at risk and exposes her to risk.

Overall, there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child.

Finally, in Himes v. Himes, which was another Ontario case, the court had to consider whether an exchange between spouses on Facebook could be introduced as evidence.  In that case, the wife had approached the husband to see whether he was willing to discuss an application for child access that he had launched.  The wife was afraid to talk to the husband directly, because she found him controlling.   However, she agreed to talk to him on Facebook, and they did so for a few days.   The wife wanted to introduce this Facebook exchange as evidence, but the court characterized them as essentially being settlement discussions, which were privileged even if both parties consented to have them introduced as evidence of what each was proposing to the other.  Accordingly the court disregarded the Facebook exchange entirely.

Russell Alexander, Family Lawyers are experienced in all areas of family law.  For more information, visit www.RussellAlexander.com

 

To reference these cases please see:

Jesmer v. Delormier, 2011 ONSC 1750 (S.C.J.)   http://www.canlii.org/en/on/onsc/doc/2011/2011onsc1750/2011onsc1750.html

M.J.M. v. A.D., 2008 ABPC 379 (Alta. Prov. Ct.)   http://www.canlii.org/en/ab/abpc/doc/2008/2008abpc379/2008abpc379.html

Himes v. Himes, [2009] O.J. No. 2787 (S.C.J.)   http://www.canlii.org/en/on/onsc/doc/2009/2009canlii55341/2009canlii55341.html

 

 

 

Facebook, Privacy, and Family Litigation: A Few More Points to Know

Facebook, Privacy, and Family Litigation;  Facebook as a Source of Evidence in Family Law: Part 5

In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation.  Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party’s profile to undermine his or her legal position in a family dispute.

In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.  

This has arisen recently in a few insurance cases, both from Ontario and other provinces.  (And the evidentiary legal principles derived from those cases have equal applicability to family law matters).    The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity.   They were suing their insurers for their damages.  
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs’ Facebook photos, and the evidentiary value of that information.  

In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his “friends” to whom he had deliberately granted access).   The question was whether the court should grant the insurer access to these.   It held that an individual user’s Facebook “privacy settings” were irrelevant to the court’s ability to order the information and photos produced.   The mere fact that the plaintiff was willing to “share” his photos and other personal information with the public via a social networking website – even if only to a limited pool of “friends” – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.

In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence.  There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as “ziplining”.   The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial.  (Indeed, this precise thing had happened in another case called Kourtesis v. Joris:  before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered.  They were therefore lost as evidence.)  The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks:   it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.

Finally, the issue of the precise scope of such a preservation order came up in the decision in Schuster v. Royal & Sun Alliance.   There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile.   The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a “fishing expedition”.  Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile.  The relevancy of each would be determined by the court at a later date.   (This principle was followed in another recent Ontario case called Re McDonnell.)

Collectively, these cases give rise to several important points for family law litigants:

• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action.     This includes photographs, commentary and videos.

• The location of the information – i.e. public or private profile – is irrelevant.  It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.

• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.

• However, this does not mean that party with the order will be handed the other party’s username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.

For the full text of these decisions, see:

Leduc v. Roman, 2009 CanLII 6838 (Ont. Div. Ct.)

Sparks v. Dube, 2011 NBQB 40

Kourtesis et al. v. Joris, [2007] O.J. No. 5539 (S.C.J.)

Schuster v. Royal & Sun Alliance Insurance Co. [2009] O.J. No. 4518 (S.C.J.)

Re McDonnell, [2011] O.J. No. 5689 (S.C.J.).