It’s a Whole New Ball Game with Social Media Evidence in Family Law Cases

BarristerSocial 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.

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Looking for a Lawyer? Buyer Beware

GeorgiaLeeLang057The practice of law is both a profession and a business. Many lawyers can rely on their winning track record and high ethics to gain a reputation that engenders word-of mouth referrals.

Other lawyers buttress their status in the profession with advertising. Gone are the days, however, of yellow pages ads.

Today’s lawyers utilize television, radio, and the internet to entice potential clients. Many of these ads fall into the “conservative, balding lawyer standing in front of a bookcase” category. While others are innovative, even racy! Case in point:

An all-women law firm in Chicago created a billboard ad that read “Life’s Short. Get a Divorce.” The ad featured a photo of an attractive woman in her lingerie beside a handsome man with a six-pack. It turned out that the woman who posed for the ad was the lead attorney at the firm and the dude with her was her personal trainer. She reported that the firm was inundated with phone calls. Unfortunately, the billboard was removed seven days after it went up for an alleged by-law infringement.

Other forays into to the world of marketing are less provocative but no less effective. One family law firm, again an all-women firm, launched their print marketing with the headline “Ever Argue With A Woman?” I think they made their point very clear!

Lubbock Texas is the home of a personal injury lawyer whose billboard screams, “Injured? Get the Gorilla!” and yes, a huge gorilla dominates the advertisement.

Other law firms have raised the hackles of their governing bodies with their ads.

In Nevada a lawyer bills himself as “The Heavy Hitter” in his rambunctious television spots and a Polish speaking lawyer ran an ad on a Polish-language radio station referring to himself as “The Lion of the Court”. The trouble was that he had never tried a case in court!

Watch What You Say Online or Be Sued

A  divorce  lawyer in Florida was awarded $350,000 in punitive damages for false statements made by a former client who was unhappy with the services she received from her lawyer.

Both the client and her ex-husband  posted comments on multiple websites which read:

“This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. G.  is simply not one of the “good ones. Horrible horrible experience. Use anyone else, it would have to be a better result.”

“I accepted an initial VERY fair offer from my ex. Mrs. G. convinced me to “crush” him and that I could have permanent etc. Spent over a year (and 4 times her original estimate) to arrive at the same place we started at. Caused unnecessary chaos and fear with my kids, convinced me that my ex cheated (which he didn’t), that he was hiding money (which he wasn’t), and was mad at ME when I realized her fee circus had gone on long enough and finally said “stop”.  Altered her fee structures, actually replaced original documents with others to support her charges and generally gave the kind of poor service you only hear about. I’m not a disgruntled ex-wife. I’m just the foolish person who believes that a person’s word should be backed by integrity. Not even remotely true in this case. I’ve had 2 prior attorneys and never ever have I seen ego and monies be so blatantly out of control.”

Both the client and her ex-husband appealed the damage award, however, just before the appeal was to be heard the ex-husband withdrew his appeal saying that he had settled the matter with the attorney.

 

His ex-wife however, did not abandon her appeal and the appellate court remarked that even if she had, they would not have dismissed the appeal, because it raised an important issue with respect to free speech protections vis a vis reviews of professional services posted on the internet. The court said the issue merited discussion as it presented a scenario that would likely occur again.

At trial, both defendants admitted they had posted the online reviews. The evidence at trial included a written retainer agreement signed by the attorney’s client which proved that the lawyer had not charged her four times more than what was quoted in the agreement, a fact both defendants later admitted.

If a statement is true it will not be defamatory, but in this case the alleged overcharging was a falsehood. It simply wasn’t true. The appeal court rejected the defendant’s suggestion that their rights of free speech protected them from voicing their “opinion” online.

 

The court disagreed saying:

“An action for libel will lie for a ‘false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in [their] office, occupation,  or business….”

 

The lesson here is to think twice before you publicly criticize a service provider, but if you feel compelled to do so, you better be sure you can prove your comments are true.

Lawdiva aka Georgialee

 

 

Mr. No-Pay: You Can Run, But You Can’t Hide

DSC01152_2 (2)_2Family law lawyers now have access to information that can transform a case from an up-hill battle to a slam-dunk, and it’s all thanks to the internet.

Case in point: I have a client whose ex-husband, a venture capitalist, stopped paying his child support about one year ago. Exhibiting the patience of a saint, my client bided her time, hopeful her ex would reinstate his payments and make up the arrears. Didn’t happen.

She then contacted my office and the legal process began. Her ex was obliged to provide the usual financial documents including income tax returns and corporate financial statements. His tax returns showed nominal income and gosh, darn, he said that all of his businesses were insolvent so he hadn’t bothered to have his accountant prepare financial statements.

With a little help from the internet, we learned he was selling his home with an asking price of just over $900,000.00. After the usual land title searches, we found out he had already purchased a new home in another community. He said he was downsizing. He paid about $850,000.00 for his new home. It was a lovely estate property, larger than his last home, in a less expensive rural area.

Next stop was his Linkedin page and from there we simply googled his name and the names of his corporations. Here’s what we found.

Earlier that year, he made an offer of $25 million to purchase a golf course/housing development project that was very close to his new home and in financial trouble. Press releases abounded announcing the pending acquisition and his superior business acumen.

Several years earlier he had been a finalist for an entrepreneur of the year award. He was on the Board of his local Chamber of Commerce and associated with at least two consulting firms touting his business expertise. His allegations of insolvency were not born out. His only business debt was related to a wine store he operated. He was paying $1000.00 per month to pay down the $40,000.00 debt, $1000.00 more than he was paying for his two kids!

With this information and his feeble explanations, he no longer looked as broke as he said he was. My client got her happy ending when a judge ordered Mr. No-Pay to pay up asap!

It’s not always this easy, but his “high profile” doomed any chance of a judge buying what he was selling. And don’t get me started on the gems you can find on Facebook!

You can run, but you can’t hide from the internet!

Looking for a Lawyer? Buyer Beware

_DSC4851The practice of law is both a profession and a business. Many lawyers rely on their winning track record and high ethics to gain a reputation that engenders word-of-mouth referrals.

Other attorneys buttress their status in the profession with advertising, but Yellow Page ads, popular for so many years, have gone the way of the dodo bird.

Today’s lawyers utilize television, radio, and the internet to entice potential clients. Many of these ads fall into the cruelly boring “conservative, balding, male lawyer standing in front of a bookcase” category. While others are innovative, even racy! Case in point:

An all-women law firm in Chicago created a billboard ad that read “Life’s Short. Get a Divorce.” The ad featured a photo of an attractive woman in her lingerie beside a handsome man with a tanned six-pack. The woman who posed for the ad looked like a model but she was the lead attorney at the law firm and the dude with her was her personal trainer.

She reported that the firm was inundated with phone calls. Of course, the billboard created quite a stir and consternation in the Chicago bar. It was removed seven days after it went up for an alleged by-law infringement.

In reaction to their increase in business, these lady lawyers started a website with the same name, where they sell T-shirts and mugs with the slogan emblazoned on their products. From all reports they’re selling like hotcakes!

Other forays into to the world of marketing are less provocative but no less effective. One family law firm, again an all-women firm, launched their print marketing with the headline “Ever Argue With A Woman?” I think they made their point very clear!

Of course, where television copies life, you have the billboard in New Mexico declaring “Better Call Saul”, the sleaze bag attorney from “Breaking Bad” who has been rewarded with his own spin-off show.

Other law firms have raised the hackles of their governing bodies with their ads.

In Nevada a lawyer bills himself as “The Heavy Hitter” in his rambunctious televisions spots and a Polish speaking lawyer ran an ad on a Polish-language radio station referring to himself as “The Lion of the Court”. The trouble was that he had never tried a case in court!

Looking for a lawyer? Buyer Beware!

Lawdiva aka Georgialee Lang

Beware Cyberbullies- Guest Post

The internet is an incredibly powerful tool; it can open up worlds of information, connect people from across the globe, and unite users in a pool of information that have never been accessible before. However, if not used correctly, it can also be a horrendous tool for bullying. Parents must be vigilant and more careful than ever when it comes to letting their children use the internet freely. With heartbreaking stories like that of bullied teen Amanda Todd and others filling the news each day, it is more important than ever that you talk to your children about cyberbullying. There are a few ways that you can prevent your teen from becoming a cyberbully and each is easy and beneficial to both parties.

1. Listen- most parents think that talking to your child is the best way to break through when in fact, listening is far more beneficial for both. If you allow your child the opportunity to talk about what is bothering them and what is making them feel angry or as if they want to lash out, you are far less likely to have a child that does in fact carry through on those feelings. Rather than talking at your child and hoping that they hear you, taking the time to listen to what they have to say can help strengthen your bond and get them expressing.

2. Limit and Monitor Internet time- letting your children run rampant on the internet is the quickest way to create a cyberbully. Instead you should help your troubled teen find a better way to express their feelings than blogs and social media sites. You should encourage face to face interaction whenever possible.

3. Allow Your Child Some Freedom- this does not mean let them do whatever they want but more simply, allow them some say in what they do. Rather than saying go clean your room immediately or else, you could say you have an hour to clean your room. This way they can choose when to clean their room but are still bound by rules. Creating rules in your home that are not so strict is a great way to make sure that you child does not feel the need to lash out at other children or at you.

4. Show Them How It feels- if you catch your child bullying another child on the internet let them know how it feels to be bullied. Do not simply take away internet privileges, if they want to get on the internet they will find a way. You need to drive your point home and let them know that if hurts when someone calls another person names.

5. Talk to Friends- if your child continues to cyberbully another child you may need to talk to the parents of your children’s friends. Often a child does not simply pick on another without the help or encouragement of another child. If you take the time to ferret out where the abuse is coming from you may be able to help your child address why they are doing what they are and help them stop.

Cyberbullying is a very serious issue and should be treated as such. You should not take the situation lightly if your child is guilty of being a cyberbully. Taking the time to talk and listen to your child is the best way to see where the actions are coming from and to address the issue at hand.

Agnes Jimenez is a professional blogger and writer with a focus on troubled and depressed teens and how to help them. Follow her at twitter @empressofdrac or check out TheFamilyCompass.com.