Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

 

Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases

In my last post, I discussed a few interesting cases in which Facebook pages was used or scrutinized by the family courts. In particular, these were cases in which Facebook postings or pages were used – sometimes in unexpected ways – as a source of evidence as to character, motivation, or the truth of allegations in a family law dispute.

In some other cases, however, Facebook and other social networking sites have also been used by spouses or family law litigants in more direct and nefarious ways: i.e. as a vehicle for getting revenge on a separating spouse, or as a means of surreptitiously getting around an unfavorable order or direction from the court.

 

As these cases illustrate, this is never a good idea, since this type of conduct is also taken into account by family courts when deciding family law and related matters.

For example, in a B.C. case called Nesbitt v. Neufeld, the father and mother had been involved in an ugly and protracted family law battle, in an attempt to resolve legal matters relating the young child they had together.

The father was a family doctor, though not practising. Against the advice of the court, he opted to represent himself throughout the litigation. The mother was a successful businesswoman. At some point, she had given him one of her old home computers, which contained some of her private correspondence. The father used the information he found on those computers to defame the mother: for example, he sent e-mails and photos from her dating profile to the Rotary Club where she was an active member. The photos were of her and their daughter, and in his letter to the Rotary Club the father cast aspersions on her for using the child’s photo and luring “potential pedophiles” via the dating site, commenting that “it must be difficult for someone at her age and with her personality to attract men”.

He also created a website titled “Wicked Wendy Neufeld”, which included material from the family court litigation, the Rotary Club emails, various private correspondence to or from the mother, and information derived from personal knowledge that the father had about her. It included comments that the mother was “mean”, “weird” and “sneaky”.

Finally, he also created a Facebook page, which was called the “Wendy Neufeld Support Group”. It contained material that the court found highly inappropriate, as illustrated by the court judgment:

6. The Facebook Page

39 Though discovered on March 10, 2009, Ms. Neufeld said the Facebook Page was up since October 2008. Under the heading “Recent News”, there were a number of sentences reading: “Wendy’s mother died a few months ago. Wendy’s father died a few weeks ago. Her three tragic divorces. The affair with a married man. The suicide attempts. The boyfriend who got deported back to Egypt for being a male prostitute”.

40 I find that Dr. Nesbitt was the administrator and creator of the Facebook Page. Later, in November 2008, he wrote what he called a “eulogy” about Ms. Neufeld’s father and posted it on the Facebook Page (Affidavit of Dr. Nesbitt, sworn September 8, 2009, para. 113). Sarcasm is evident throughout the missive. He did this after a consent restraining order had been issued on September 8, 2008 in the family court proceedings prohibiting Dr. Nesbitt from making any more disparaging comments about Ms. Neufeld and members of her immediate family. Dr. Nesbitt had been advised correctly that he could not defame the dead. This did not stop Dr. Nesbitt from annoying those that were still alive.

41 That Ms. Neufeld did not want or need a “support group” is evident. That Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness.

Not surprisingly, the court found that the Facebook page and the so-called “support” page were among the numerous means by which the father published mean and malicious comments about her, as a means of scandalizing and defaming her. Moreover, the fact that the father released the mother’s private communications to third parties such as the Rotary Club amounted to a violation of her privacy. Ultimately, he was ordered to pay the mother $40,000 in damages.

In another B.C. case called Bains v. Bains, the mother sought sole custody and guardianship of the two children of the marriage, with supervised access to the father. The father had been an abusive husband throughout the marriage, which abuse resulted in assault and an order for anger management counselling. Among other things, the father began to turn the children against their mother by making derogatory remarks about the mother and her parenting skills in front of the children. He blamed the separating on the mother, told the children that she had ruined their lives and was stealing their money. He was emotionally manipulative, and also listened in on phone calls between the mother and the eldest child, and elicited pity from the children through certain self-centred conduct. He had particularly succeeded in alienating the oldest child, Kiana, from the mother: Kiana started being critical of the mother’s financial management and parenting, and stopped being affectionate with her. The younger child showed fewer signs of parental alienation, but still had difficulty sleeping unless he slept in the father’s room.

Despite having been ordered not to contact the children except with supervision, the father continued to have secret contact with the oldest child through his Facebook account, which also featured negative comments about the mother. He also used his Facebook “friends” to pass on information to the eldest child. About this conduct, the court wrote:

65 While Mr. Bains has not contacted [the daughter] Kiana directly outside of the supervised visits since supervision was reinstated, he has continued to permit her to access him via Facebook on the internet. He permits Kiana to be a “friend” who is able to read any of his public comments. She also has his password which permits Kiana to see anything Mr. Bains posts on his Facebook account. While Ms. Bains asked Mr. Bains to change his password, and prevent Kiana from accessing his Facebook, he has ignored her request. Although he testified that changing the password would restrict his other friends from viewing the Facebook, “friends” do not normally have access to his password and do not require a password to access his public areas. On his Facebook account Mr. Bains complains of the cost of the trial and makes negative comments about Ms. Bains. While he claimed these are private conversations that Kiana cannot access, Mr. Jespersen testified that with password access Kiana may view anything that Mr. Bains sees and puts on his Facebook. Mr. Jespersen’s evidence is reviewed below. He is an expert in computers and has many years of experience with the Internet. Mr. Bains denied that Kiana has his Facebook password; however, he acknowledged that she set up his Facebook and thus would likely have created his password. He also ultimately agreed that with his password anyone can see his private conversations.

In the end, the mother was successful in obtaining sole custody and primary residence of the children; the father was awarded supervised access. The court considered the Facebook page as evidence that the father was alienating the children from their mother, and was indirectly exposing them to disparaging comments about her. About the use of Facebook in particular, the court wrote in its order:

(c) Mr. Bains shall have no other contact with the children, directly or indirectly, or through other persons, and this prohibition specifically includes contact by telephone or cellular telephone, via the internet, and through any third party via any of these means of communication. Mr. Bains shall immediately change his Facebook password to ensure Kiana has no access to his account and he shall immediately remove her name from his list of “friends” so that she is not able to read messages on his public wall. Mr. Bains shall also immediately advise all of his adult friends to cease contacting Kiana by any means, including via the internet and cellular telephone. If Mr. Bains breaches this term of the order, Ms. Bains is at liberty to unilaterally terminate the supervised access to Kiana described in paragraph (b), subject to Mr. Bains’ right to apply to the court to reinstate this supervised access and I remain seized of any such application.

Clearly, when adjudicating on family matters courts are now being forced to deal with the use of Facebook and other similar cites in their decision-making, and must address the extent and nature of future use in their family law orders.

To review the Court’s full decisions in these cases, reference:

Bains v. Bains, 2009 BCSC 1666 http://bit.ly/qbEzoP

Nesbitt v. Neufeld, 2010 BCSC 1605; appealed on procedural grounds, 2011 BCCA 241 http://bit.ly/pgsFsb

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