What steps should family law lawyers be taking and what advice should they be giving to their clients to address the growing regularity of online evidence admitted and considered in court proceedings? Adam Black examines the implications of the Court of Appeal's decision in R. v. Marshall.
The importance of online and social media evidence, while relatively novel, cannot be overstated. That importance is no more apparent than in family law. Indeed in a recent case, Justice Sandomirsky of the Saskatchewan Court of Queen's Bench noted the following:
“In the past couple of years evidence of social media, whether Facebook or Twitter, has surfaced in evidence in family law proceedings with increasing frequency. The thoughtless behaviour and comments which are posted on Facebook, and responded to by individuals of lesser or like minds, opens the door to a new form of evidence and window into the lives of future litigants. The court was referred to various postings... on Facebook. In addition to those postings highlighted by counsel for the petitioner, the court read all of the Facebook postings including some fair and some rather mean responses by other friends invited to the face page... What may now become evident to the parties, with the benefit of hindsight, is the deleterious effect of airing one's dirty laundry in public”.
From a review of the case law, it seems that many family law litigants have suffered the same deleterious effects of their careless social media posts:
Westhaver v. Howard, 2007 NSSC 357, the Nova Scotia Supreme Court (Family Division) considered crude and homophobic comments posted by a father on social media and found those comments to be evidence of the father’s poor judgment, ultimately denying the father access to the child;
M(MJ) v. D(A), 2008 ABPC 379, the Alberta Provincial Court dismissed a father’s application for guardianship of his child and ordered modest access, relying in part on the fact that the father had “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 that the father had simultaneously posted photos of the child online, thereby linking “the child to his rancour... and, despite her young age, also exposed her to adult-appropriate matters";
W(JWA) v. B(A), 2008 NBQB 157, the New Brunswick Court of Queen’s Bench (Family Division) admitted into evidence photographs found online that showed the mother dancing at a bar, drinking alcohol and smoking marijuana. This formed part of the basis for finding that it was in the child’s best interest to reside primarily with the father; and
Byram v. Byram, 2011 NBQB 80, the New Brunswick Court of Queen’s Bench (Family Division) considered the vilifying comments made online by the father about the mother in granting the mother sole custody.
What steps should lawyers be taking and what advice should they be giving to their clients to address the growing regularity with which online evidence is admitted and considered in court proceedings? The answer is simple:
conduct a thorough and ongoing search for relevant online evidence; and,
do not create new posts or tweets etc. that the client will come to regret later.
Looking for Evidence Online – The Duty to Google
In R. v. Marshall, the Court of Appeal for Ontario refused to admit fresh evidence on appeal on the basis that the proposed evidence “was available at the time of the trial in that it was posted on the Internet.” The Court’s comments make it clear that if information was posted on the Internet at the time of trial, that information will be deemed to have been available at the time of trial whether or not it was known to the litigant. This raises the real question of whether the Court has created a “duty to Google”. If such a duty exists, does a lawyer now have an obligation to his or her client to search the Internet for relevant information?
Under the Rules of Professional Conduct, a “competent lawyer” means a lawyer who “applies relevant knowledge, skills and attributes in a manner appropriate to each matter” including:
“investigating facts, identifying issues, ascertaining client objectives, considering possible options, and developing and advising the client on appropriate courses of action”.
However, no mention of the use of technology is contained in this rule or the commentary thereto. While it is unlikely, it is not yet known if Marshall will be interpreted to impose upon lawyers (not just clients) an obligation to conduct an online search for relevant evidence. At the very least, lawyers should, from the outset of their relationship with a client, advise the client to conduct a thorough and ongoing search of the internet for information that is relevant to their case. Lawyers ought to consider including language to this effect in their retainer.
The Impact of Being Googled
Marshall may have also created a companion duty to warn clients about the risks of making information available online, that the opposing party will be “Googling” them, and that information made available online may be used against them. While it is not permissible to destroy evidence that may be relevant, indeed such evidence must be preserved, it is certainly prudent to include language in a retainer warning a client not to create new online posts, tweets or the like he or she will come to regret later.
An application for leave to appeal Marshall was filed at the Supreme Court of Canada in September. Lawyers in Ontario, and Canada more broadly, should be alert to this appeal and its potential ramifications on their professional obligations.
About the Authors
Adam Black is a lawyer at Torkin Manes LLP where he practises exclusively in the area of family law.
Jenna Himelfarb is an articling student at Torkin Manes LLP.