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We are please to announce that Abi Adeusi has joined our team!

We are please to announce that Abi Adeusi has joined our team!

Abi Adeusi is an associate lawyer at our firm practicing exclusively family law. Abi obtained her law degree from the University of Wolverhampton England in 1993. After taking time to start and raise her family she returned to the law profession in 2002 and articled in London with a very busy and dynamic law firm. After enjoying a very successful practice as a Solicitor, Abi moved to Canada in the summer of 2008 with her family.

Abi, was called to the Bar by the Law Society of Upper Canada in June 2010 and started her practice in Southern Ontario with a focus family law. Abi is also licensed to practice Law in England and Wales. Abi’s memberships include Law Society of Upper Canada, the Law Society of England and Wales, the Ontario Bar Association, the Canadian Bar Association, the Durham Law Association, the Peterborough Law Association, and Northumberland County Law Association.

Abi has a varied and diverse cultural background and experience with a passion for people. When she is not practicing law Abi enjoys spending time with her family travelling and exercising. Clients love Abi’s client focused approach to resolving disputes and we are extremely excited to have her as a member of our team.

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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

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com

You can also visit us on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

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Facebook as a Source of Evidence In Family Law: Part 1

 Facebook as a Source of Evidence In Family Law: Part 1

Facebook, Twitter and other social networking sites are now a routine part of many people’s lives, and have become a convenient means of interacting with others. What some people do not realize, however, is that postings and activity on Facebook and similar sites can be used in family litigation – and usually in unexpected and unforeseen ways.

For example, in a very recent Ontario decision called Jesmer v. Delormier, the father applied to the court for access to his child, a boy named Wyatt. The mother opposed this, claiming that the father and his family should have no access to Wyatt whatsoever.

After a hearing, the court ordered that the father should be given access, but only on a supervised basis. Nonetheless, he never got a chance to fully exercise the access because the mother threw up obstacles to thwart it. The mother wrote the following Facebook message to the father’s sister:

Hi Meagan,

Okay so what I wanted to say. I lied to the judge and it was wrong. I’m hoping this isn’t going to backfire but I think that the best interest of Wyatt is with Alex and that she is right in some ways I think Craig should have supervised visits if anything but Craig is not capable of caring or looking after kids. He has a violent anger which is why I didn’t say the truth that day I was scared and which is why I left. Now there are numerous things I can bring to the judge about Craig and how he is unfit to have any kids without supervision. I do think Wyatt should know him but I wouldn’t trust Craig with any kids either. I did everything and he would leave at long times with me taking care of the kids he never changed Leiland’s diapers I was always the on[sic] to change them. He yelled at me and the kids many of times. I am willing to tell the judge this but I don’t want to be named. Not sure how this would happen though. All I would like out of this is 15,000. I could use the money not going to lie.

I hope you all have a merry xmas and a happy new year.

This Facebook message came to the court’s attention, and the hearing was re-opened to allow the court to consider this new evidence. When confronted, the mother claimed that the Facebook message was untrue; she said she had simply sent it in a fit of fury when, post-separation, she had called the father’s new house only to have an unknown woman answer the phone. She said she wrote the Facebook message to hurt the father.

The court found that the mother’s explanation with respect to the Facebook message simply did not ring true. And whether true or not, the fact that she even sent it displayed “a complete lack of judgment and a total disregard to [the child] Wyatt’s best interests”. The court also noted that she came up with the current explanation a full three months after she posted the Facebook message, and – conveniently – at a point when she and the father had apparently reconciled. Accordingly the court could not determine whether the mother had lied in court or had lied on the Facebook message. It therefore disregarded her evidence in its entirety.

Similarly, in a case called M.J.M. v. A.D., the court reviewed the father’s Facebook page as evidence of his character and his credibility. It observed:

48 With respect to the father’s complaint that the mother is attempting to fool the Court about him, I have heard the evidence and observed the demeanour of both parties while giving their evidence.

49 The mother’s demeanour was straightforward and direct. She answered the questions she was asked and did not try to present herself in a better light. This positively affected her credibility.

50 The father’s demeanour was at times overly self-confident. At times in his cross-examination he answered questions with questions and was evasive. At times he was contrary; at times he shrugged when answering questions so that he displayed and conveyed a challenging “so what” attitude. He gave the grandmother the “finger” during her evidence, which was remarked upon by the grandmother and which I observed. This was both disrespectful and displayed the kind of dismissive attitude he has to the mother’s family and the mother. He did not present himself in the best light at a time when the child’s best interests called for the same. All this negatively affected his credibility.

51 Where there is a difference between the evidence of the mother and the evidence of the father, I accept the evidence of the mother.

52 In addition to the conflict between the parties, the father has demonstrated and displayed publicly (at least to his some 95 “friends” on his Facebook page) his disregard and callous lack of consideration of the mother, and his demeaning and dismissive attitude to her. On his Facebook page is a link to another site entitled “[the father] has a crazy x!”. Additionally, the father has an obscene and crude reference to a “porno actor” on his earlier Facebook page. The father refers to his Facebook page as “fun” and a place to have “fun”. This is hardly funny in the unique circumstances of this case. I also note that one of his “friends” on his Facebook page is his common-law partner’s twelve-year-old daughter. This child has been exposed to the father’s rancour and attitude to the mother. At the same time, the father has posted pictures of the child on his Facebook page. He has thereby linked the child to his rancour to the mother and, despite her young age, also exposed her to adult-appropriate matters which the father thinks are fun. That the father would do this is surprising and speaks to the issue of the whether the father can protect the safety of the child absent a detailed Court order. This does not speak to an adult consideration of the child’s best interests. I ordered him to remove the child’s picture from this site and not to post the child’s picture on any other Internet sites. In my opinion, posting her picture like this both puts the child at risk and exposes her to risk.

…

Overall, there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child.

Finally, in Himes v. Himes, which was another Ontario case, the court had to consider whether an exchange between spouses on Facebook could be introduced as evidence. In that case, the wife had approached the husband to see whether he was willing to discuss an application for child access that he had launched. The wife was afraid to talk to the husband directly, because she found him controlling. However, she agreed to talk to him on Facebook, and they did so for a few days. The wife wanted to introduce this Facebook exchange as evidence, but the court characterized them as essentially being settlement discussions, which were privileged even if both parties consented to have them introduced as evidence of what each was proposing to the other. Accordingly the court disregarded the Facebook exchange entirely.

You can review the Court’s full decision in these cases at:

Jesmer v. Delormier, 2011 ONSC 1750 (S.C.J.) http://bit.ly/q5k1pH

M.J.M. v. A.D., 2008 ABPC 379 (Alta. Prov. Ct.)  http://bit.ly/pmYyLe

Himes v. Himes, [2009] O.J. No. 2787 (S.C.J.) http://bit.ly/npAPnp

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com

You can also visit us on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

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