When Facebook and Twitter are not your friends

What’s New In...
Family Law
Oversharers beware:
social media sites
are a treasure trove
of damaging evidence
in family law cases
— and the court
is all ears.
When Facebook and Twitter
are not your friends
By Ava Chisling
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42
N AT I O N A L
June 2012
ROBERT JOHANNSEN
I
n family law cases, image matters. And thanks to the
popularity of social media, it’s easier than ever to find
damaging evidence online in the form of status updates,
late-night tweets and risqué photographs that call one’s
judgment into question. That’s why lawyers acting in
divorce, support and child custody cases increasingly are
going online — and advising their clients to log off.
“When people come into my office I ask them: ‘Have you
changed your insurance policy? Have you changed your
will?’ These questions have been asked forever,” says Daniel
Melamed, a certified family law specialist and partner at
Torkin Manes. “But now I ask: ‘Do you have a Facebook
page and do you blog or tweet? And if so, be aware that all
of what you say, do, and write will be available to the court
should you post things that are public.’”
Social media is proving to be a shortcut in the tedious task
of researching the opposing party. Lawyers can now get a
detailed account of someone's actions — in their own words
— through Facebook or Twitter. Furthermore, it can be used
in court. “It can be pretty devastating evidence,” says
Harold Niman of Niman Zemans Gelgoot LLP. “In family
law these days, it is far more common than uncommon to see
emails, text exchanges and anything else electronic referred
to in affidavits.”
Unfortunately, the consensus among family lawyers is that
clients are not getting the message that everything posted
online — BBMs, emails, texts, voicemail, chats and all other
forms of communication — can be used as evidence if it was
intended for the public. “People do the dumbest things and
Quoi de neuf en...
droit de la famille
Quand Facebook n’est pas votre ami
Les sites comme Facebook et Twitter sont des mines d’information potentiellement
dommageables dans les causes de droit de la famille.
L’
image est importante dans des
dossiers de droit de la famille. Et
grâce à la popularité des médias sociaux, il est plus facile que jamais de trouver
des éléments de preuve dommageable sous
la forme de statuts Facebook, de tweets de
fin de soirée ou de photographies risquées
qui remettent en question le jugement d’une
partie. C’est pourquoi les juristes qui
œuvrent dans le domaine surfent de plus en
plus sur internet — et conseillent à leurs
clients de s’en tenir loin.
Malheureusement, le consensus chez les
avocats en droit de la famille est que les
clients ne saisissent pas encore pleinement la
portée d’un message publié en ligne — BBM,
courriel, messages textes ou vocaux, etc. —
et le fait qu’ils peuvent être utilisés en
preuve s’ils étaient destinés au public. « Les
gens font les choses les plus stupides et ils
publient les choses les plus stupides, estime
Daniel Melamed, un associé chez Torkin
Manes à Toronto. Ils mettent des photos
d’eux-mêmes avec une bière dans la main et
un chapeau stupide, et écrivent: ‘Encore
saoul!’ ou quelque chose d’aussi ridicule. »
Victoria Starr de Starr Family Law est
ferme avec ses clients dès le départ. « Nous
travaillons très fort pour réhabiliter l’image
de notre client et Facebook peut nous rendre
la tâche très difficile, dit-elle. Je leur
demande de retirer leur site de la toile. S’ils
refusent, et c’est souvent le cas, la deuxième
solution est d’en restreindre l’accès. »
Si votre client est l’une des centaines de
millions de personnes qui acceptent les
demandes d’amitié d’à peu près n’importe
qui, les résultats peuvent être dévastateurs.
Par exemple, dit Me Starr, des personnes qui
travaillent sur les dossiers peuvent contacter
et devenir amis avec l’autre partie, sans
révéler leur identité. « Dans un récent
dossier, un travailleur de la Children’s Aid
Society a pu voir qu’une femme sur laquelle
elle enquêtait était en communication avec
un dangereux criminel », explique l’avocate.
Quant à la légalité de ces méthodes: « Nous
ne savons pas encore, convient-elle. Il n’y a
pas encore assez de jurisprudence ».
Harold Niman de la firme Niman Zemans
Gelgoot a récemment travaillé dans un dossier
dans lequel Facebook avait été absolument critique pour en déterminer l’issue (Dovigi v.
Razi). « Le juge a fait un constat intéressant
quant à la juridiction. Mon client était le père
et la mère de l’enfant disait qu’elle résidait en
Californie. Le juge a référé à une entrée
inscrite sur Facebook, dans laquelle la mère
parlait de son retour à Toronto. »
Les médias sociaux ont rendu la pratique
de Me Niman à la fois plus facile et plus difficile, dit-il. « Il est plus facile de rassembler de
la preuve, mais c’est plus difficile quand c’est
votre client qui se comporte mal », convient
Me Melamed.
Mais « dans 10 ou 15 ans, les jeunes qui
sont maintenant dans la vingtaine se
sépareront et divorceront… C’est pourquoi
nous devons y penser maintenant. » N
“In family law cases, we work
very hard to rehabilitate our
client’s image and Facebook can
make this difficult.”
— Victoria Starr, Starr Family Law
they post the dumbest things,” says Melamed. “They post
photos of themselves with a beer in their hand and a stupid
hat on their head with the caption ‘Drunk Again!’ or something else ridiculous.”
Victoria Starr of Starr Family Law is tough on her clients
from the start. “In family law cases, we work very hard to rehabilitate our client’s image and Facebook can make this difficult.
I first ask my clients to take their site down. If they refuse, and
they often do, the next best thing is to restrict access.”
Both Starr and Niman believe their clients do not always
understand the serious implications of what they say and show
online. “Unfortunately, in family law, people are scrutinized
and judged, literally,” Niman says. “Their behaviour and character are examined in ways that normal cases don’t lend themselves to.” This makes them vulnerable and the opposing party
knows it. “If you’re smart about what you’re trying to achieve
in court,” says Melamed, “then you’ll look for evidence in
places that would be harmful to the other side.”
Continued on page 45.
Juin 2012
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43
family to a lawyer’s suicide is shock, followed by the comment: “I did not see that coming.” That was certainly the prevailing response when my friend took his own life. Maybe we
do not see it coming because we do not take the time to see.
If you are concerned about someone, do not accept the
easy, surface response. Psychologist Dr. Paul Quinnett has
developed a program called QPR which stands for Question,
Persuade, and Refer. It differs from most counseling programs
We need to question our colleagues,
persuade them to seek help, and
then refer them to the appropriate
resources.
because it is not premised on the expectation that suicidal people will ask for help. Instead, it is based on the idea that we
need to question our colleagues, persuade them to seek help,
and then refer them to the appropriate resources (see
www.qprinstitute.com for more information.)
If you are in the battle, please realize that more people care
about you than you will ever know. I attended a large legal
conference the week after my friend’s death. He was the first
or second topic of conversation with everyone. “No one
cares” is a lie. The following week, my wife and I went on
vacation to Palm Springs. I thought of my friend every day.
How often do you suppose his wife and children thought of
him that week?
If spiritual or emotional issues are oppressing you, seek
help to deal with them. A friend of mine says: “You need to
take care of your junk before your junk takes care of you.”
When I went through my battles, I started with a psychologist
because my province has a Lawyers’ Assist Program that provides free, confidential advice to those in distress. You may
have a health plan with similar benefits; take advantage of
this. The psychologist referred me to my family doctor, who
brought my minister into the loop. This triumvirate was very
helpful for me because each had a unique perspective to offer.
My physician was not afraid to confront the larger issues. He
frankly told me: “When a psychologist says ‘go to your doctor’ it is a euphemism for ‘go get some pills.’ I don’t think you
need pills; I think that there are spiritual issues you need to
resolve.” He was right — although eventually we did employ
pills as well.
Red Green used to end a segment of his television show
by saying: “I’m pulling for you. We’re all in this together.”
Hockey commentator Ron MacLean says: “We were not
put here to see through each other. We were put here to see
each other through.” Your health, and the health of those
around you, is too important to leave to chance and the hope
that things will work out somehow. Do not let it be one day
too late. N
Philip Carr was born and raised in Toronto. He earned his B.A. from York University in
1977 and his LL.B. from Osgoode Hall Law School in 1980. Since 2006, Philip has been a
Senior Claims Examiner with the Alberta Lawyers Insurance Association. He has served as
a member of the executive for CBA’s Real Property Section (South Alberta) from 1987 –
1980, and the Personal Injury Section (South Alberta) from 1992 – 1998. He was section
chair from 1994 – 1996.
What’s New In... Family Law
Continued from page 43.
iSpy
If your client is one of the hundreds of millions who accept
just about anybody’s friendship request on Facebook, the
results can be devastating. For example, according to Starr,
case workers are contacting and befriending the party in question online, without revealing their identity. This not only
gives them access to the day-to-day details of someone’s life, it
also opens the door for direct communication. “In a recent
case, a worker at the Children’s Aid Society was able to see
that the woman she was investigating was talking to a dangerous offender,” says Starr. As for the legality of these
actions, Starr says: “We just don’t know yet. There is not
enough case law.”
Niman recently worked on an Ontario case where a
Facebook posting was absolutely crucial in determining the
outcome (Dovigi v. Razi). “The judge made a very important
finding in dealing with jurisdiction. My client was the father,
and the mother of the child said she was a resident of
California. The judge specifically referred to a Facebook posting by the mother that talked about her coming back to
Toronto, in contradiction to what she had entered in evidence.
That Facebook posting wasn’t just an incidental finding, it was
a critical finding.”
In other recent cases, judges have used Facebook messages
to determine the credibility of a witness (Jesmer v. Delormier,
in Ontario), to establish the poor judgment of a parent (M.J.M.
v. A.D., in Alberta), and to determine that some messages sent
electronically are private (H.H. v. R.H. in the U.K.). Melamed
says just about anything can be considered as evidence. “The
old rules of confidentiality apply. Was the intention of the
I
Juin 2012
t is not only social media that is changing the practice of family law. There are other electronic means being used as well.
Victoria Starr is seeing more and more spyware cases in her
practice, for example. Those are the devices that can track your
whereabouts via your phone or computer. They can also be used
to obtain correspondence, including emails and chats between
the opposing party and his or her lawyer. And since the recent
Ontario Court of Appeal case recognized the existence of a new
privacy tort called intrusion upon seclusion [Jones v. Tsige], these
tactics can cause serious problems for the party doing the spying
— and potentially for the lawyer requesting or relaying on this
kind of evidence.
communication confidential and was it criminal in nature? If
you post something to your friends or to friends of friends,
that can be considered public. Context is everything. If you’re
looking for ‘dirt,’ you look for anything on these pages that
demonstrates a lack of judgment.”
Niman says social media sites have made his practice easier and harder at the same time. “It is easier to gather evidence
but harder when your own client behaves badly.” Says
Melamed: “The reason [evidence gathered electronically] is so
important is because 10 to 15 years from now, kids who are
now in their twenties will be separating and divorcing in their
thirties, forties and fifties. That is why we need to think about
this now.” N
Ava Chisling is a Montreal-based lawyer and an award-winning writer.
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