Social media has changed the way the world communicates and connects on a personal level. While many lawyers have resisted the change, it is no longer possible to deny its impact. Your clients are using social media and so should you. Its relevance to family law lawyers takes several forms, none more important than as evidence in court.
This comment will consider the admissibility of online material in court proceedings by reviewing several recent Ontario and British Columbia cases. You will see that social media evidence has made it a whole new ball game for family law litigators.
Family law cases are infamous for “he said/she said” narratives, and in many cases, social media can shed light on the credibility of a litigant’s evidence. In Plese v. Herjavec 2015 ONSC 7572, Dragon’s Den star Robert Herjavec was faced with argument that his net worth was well beyond what he admitted. His wife tendered three exhibits: a Wikipedia excerpt that reported his net worth at $200 million; other social media reports that his net worth was $160 million, and a “getnetworth.net” report in the amount of $100 million. Mr. Herjavec had also written a book where he wrote that he sold his company for $100 million.
He challenged the social media evidence explaining that he had no control over what others published and that most ofit was mere “hype”.
For her part, his wife said that the evidence proferred was not intended to prove the value of his business interests, but to show that his evidence of net worth should be viewed sceptically. She also referenced a speech given by her husband in 2015 where he said that “in three years we can quadruple the value of our business” and increase revenue from $150 million to $250 million.
Mr. Herjavec urged the court to strike the evidence from his wife’s affidavit. The Court declined saying:
“Indeed, the Applicant does not say that she believes the evidence to be true. She does not offer it as evidence of the income of the Respondent or of the value of the business.Rather, she offers it to undermine the credibility of the Respondent and argues that the court ought to conclude that there is serious reason to doubt the accuracy of the Respondent’s evidence and assertions.”
However, the Court also said that it had not relied on the social media evidence in respect of its analysis of Mr.Herjavec’s income.
In Caine v. Ferguson 2012 ONCJ 129 a father, who was a musician, argued that his income was too low for an award of child support to be made against him.
His former wife’s counsel submitted he could be earning $35,000 per annum, and in support of her submission sought to introduce two internet articles from American websites: Payscale andMusicianWages.com.
The chambers judge remarked that in Rodgrigues v. De Sousa 2008 ONCJ 807 he had permitted reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry, as the documents came directly from the provincial and federal governments and had some indicia of reliability.
However, he refused to admit the documents, finding they did not come close to achieving threshold reliability: there was no indication the sources were reputable, no foundation was provided as to the qualifications of the authors of the documents; they were dated; and from the United States. The Court was not satisfied they reflected what a freelance musician could earn in Toronto.
In Balayo v. Meadows 2013 ONSC 5321, a mother made serious and inflammatory allegations against her husband, stating that he was physically abusive to her and verbally abusive to her and their child, who was traumatized by his behaviour. She alleged he was a drug user, drank excessively, and gambled away their assets. The allegations were vociferously denied by the husband who introduced into evidence text messages between the parties that showed cordiality, respect, and cooperation, and evidenced plans to spend time together with their child. The Court noted that a determination of where the truth lay would be facilitated by oral testimony and cross-examination at trial.
The father had not seen his daughter for eight months. In light of the length of time there had been no contact between father and child, the Court ordered short-term supervised access to facilitate a gradual re-introduction of the child to her father, noting that the order should not be considered an acceptance of the mother’s allegations of abusive or harmful behaviour.
In Teuissenv. Hulstra 2017 BCSC 2365 the British Columbia Supreme Court refused the defendant’s application to admit a binder of 277 Facebook posts covering a two-year period in a motor vehicle accident case.
The defendant hoped to use the posts to prove that the plaintiff’s alleged physical impairment and loss of enjoyment of life was exaggerated as evidenced by the activities shown in the Facebook entries. The plaintiff did not object to the defendant entering the posts individually by showing them to a witness and asking relevant questions, but questioned the efficacy of entering a binder of posts some of which had little relevance to the defendant’s position.
Relying on Samuel v. Chryler Credit Canada Ltd. 2007 BCCA 431 the court considered the impractical nature of admitting documents “en masse” and eschewed the practice of entering a book of documents as a whole. The court reasoned that such a process would unduly lengthen already unmanageable trials.
The court held:
” I conclude, therefore, that the proper approach is for the defendant to seek the entry of the pertinent post or picture after properly identifying it, establishing its relevance, and questioning the author on that matter. At that point, the parties can agree or the court will determine whether it should be properly marked as an evidentiary exhibit in this matter.”
To properly submit a book of documents “en masse”, counsel will need to have opposing counsel review the book and agree that each document is authentic and admissible. This exercise will ensure that both counsel have put their mind to each specific document, prior to the trial commencing, thus avoiding the dilemma of hordes of irrelevant material being thrust upon the court.
So long as the usual evidentiary rules are adhered to, social media evidence is no different than other forms of evidence in court. The hallmarks remain relevance and reliability.