What is Considered “Cyberbullying” in Family Law?
One of the many repercussions of the ongoing COVID-19 pandemic is that we have all been spending a great deal of time online: To get information, to entertain ourselves, to share opinions, and most of all – to communicate and converse with each other.
But as we know, communication – in whatever online medium – can vary in its tenor, tone, and content. Not all communication is good, positive and helpful; some of it is specifically intended by the author to have a negative or harmful impact on the recipient.
Sadly, this type of negative communication is not uncommon in Family Law disputes, for example between former spouses in high-conflict divorces. When taken to an extreme, it can even be tantamount to “cyberbullying” by one spouse against the other.
This was the scenario in a case called Yenovkian v. Gulian. The matter started as a Family Law application, but ended up with the wife accusing her former husband of “years of cyberbullying”, which prompted her civil tort claims against him that included harassment, intentional infliction of mental suffering, and invasion of privacy. The husband had sent her abusive emails calling her a “child abuser”, “child drugger” and a liar, and also accused her of kidnapping, fraud and abuse. These accusations appeared on various webpages, on a YouTube channel, and in an online petition (with the latter being sent to his wife’s family, friends, business contacts, and church associates). Some of the posted content also jeopardized the privacy of the couple’s young child, since it included videos of him in various contexts. The father persisted in this conduct despite several court orders to desist.
Relying on its jurisdiction under the civil tort laws, the court ultimately awarded the wife about $300,000 in assorted civil damages, of which $150,000 were punitive in nature. And – to the extent the father’s cyberbullying impacted the couple’s child in particular – the court found it also had authority under provincial child-focused Family Law legislation to grant the mother’s request to block the father from making any posts that impinged on the child’s best interests and privacy rights.
Among the many noteworthy aspects of the ruling is that the presiding Ontario court judge provided a very helpful definition of “cyberbullying” to be applied in the Family Law context. The judge pronounced as follows:
For family law, I define cyberbullying as the use of electronic technology, including social media, text messaging, websites and email, in a manner that is intended to cause, or should reasonably be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person’s body, feelings, self-esteem, reputation or property …
This clear and broad definition should serve Family Law litigants well, when called upon to establish that they may have been the victims of cyberbullying by a former spouse or partner.
Even though the concept of cyberbullying is not all that new, in recent years it has attracted the particular focus of courts and legislators across the country, both in the Family Law realm and beyond. Although there is no legislative counterpart in Ontario, the province of Nova Scotia has even enacted a statute, titled the Intimate Images and Cyber-protection Act, S.N.S. 2017, c. 7, that makes it possible for victims of cyberbullying to pursue civil-law-based alternatives to the criminal prosecution of those who perpetrate such conduct against them. Among other things, it allows courts to order the removal of online content, and to order the perpetrators to pay damages to their victims. That Act was applied in a recent Nova Scotia civil case called Candelora v. Feser where the court, citing the Yenovkian v. Gulian case for the principle that cyberbullying and similar torts should be treated as being analogous to defamation, ordered the cyberbullies to pay general damages of $50,000, aggravated damages of $20,000, and punitive damages of $15,000.
For the full text of the decisions, see:
Yenovkian v. Gulian, 2019 ONSC 7279
Candelora v. Feser, 2020 NSSC 177