JUNE 2012 - The National - Family Law and FB

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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June 2012

ROBERT JOHANNSEN

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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.

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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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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

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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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