Standard

A lawyer who wishes to enter electronic information into evidence must be aware of potential ethical issues. A lawyer must comply with the disclosure requirements regarding electronic information as imposed by Rules 14 and 16 of the Nova Scotia Civil Procedure Rules, to the extent that such rules apply in the particular court.1

A lawyer must be aware of the ethical considerations involved with the use of social media, including but not limited to Facebook accounts and text messages and must advise a client not to do anything that a lawyer would consider dishonest or dishonourable2, including secretly obtaining text messages3 and/or private Facebook information4.

Reference Materials

Notes

1.  Pursuant to Rule 14.02 of the Civil Procedure Rules “electronic information” means a digital record and includes emails, text messages, databases, spreadsheets, images, sound, electronic calendars and social media (i.e. Facebook, Twitter etc.) Rule 16 deals with the disclosure of electronic information. There is a duty on each party to an action to review the electronic information that it controls, to disclose relevant electronic information (not subject to privilege) and to preserve electronic information once a legal proceeding commences. Pursuant to Rule 59.19(4) of the Civil Procedure Rules, Rule 16 do not apply under this Rule 59, unless a judge otherwise orders. (A production order is needed). Pursuant to Rule 59.28(1) of the Civil Procedure Rules, there is a list of exceptions to the application of Disclosure and discovery rules under Part 5.

2.  Nova Scotia Barristers’ Society, Code of Professional Conduct: rule 5.1-2(b) “The lawyer as Advocate”; Armoyan v. Armoyan, 2011 NSSC 242 (Supreme Court, Family Division) The wife had “cloned” the contents of the husband’s computer hard drive. Wife’s possession of documents deemed inappropriate, if not criminal.

3.  SC v. JC, 2009 SKQB 87 (Queen’s Bench) batches of text messages were secretly copied from daughter’s cell phone – not admitted into evidence. See also DD v. JD, 2017 NSSC 147 where Facebook posts obtained from a child were admitted.

4.  Campeau et Services alimentaires Delta Dailyfood Canada Inc., 2012 QCCLP 7666. A fictitious account on Facebook was set-up to obtain information regarding an employee. The evidence obtained from Facebook was not admissible as it was obtained in conditions that infringe fundamental rights and liberties and whose use would cast the administration of justice in disrepute (see this case referenced in Teaching Old Dogs New Tricks: Using Text Messages and Social Media As Evidence, Co-authored by James N. Korpan and Aadon R. Fieger).

Commentary

Examples of Social Media used as evidence in Family Law cases:

a) Parenting and Custody:

DD v. JD, 2017 NSSC 147 The mother tendered Facebook communications sent to the children by the father in cross-examination, the Court considered whether the communications were properly before the Court given that they were obtained by the mother from the children’s s Facebook accounts. The court concluded that these messages were properly before the court for the following reasons: (1) they showed evidence of alienating conduct and the court required all relevant and probative evidence at its disposal; (2) they were used for impeachment purposes; (3) the messages were not secretly recorded – the father voluntarily produced the writings; (4) the court questioned how there could be an expectation of privacy when a “prudent parent” would likely monitor their child’s social media communication.

E.S.M. v J.B.B., 2011 NSFC 21 (Family Court). Facebook photographs are evidence. Mother did not exercise judgment in the best interest of the child.

b) Child Support:

Tran v. Tran, 2015 ONSC 5838 (CanLII), Ontario Superior Court ordered a trial on the issue of child support after the mother used Instagram and Facebook posts to bolster her claim that the father was employed and had bought a sports car rather than pay support.

V.A. v. R.A., 2011 NSFC 23 (Family Court). Wife introduced the Husband’s postings on Facebook that contained bravado about sponsorship of racing cars by his company.

Dayton v. Dayton, 2011 NBQB 239 (New Brunswick Queen’s Bench). The Wife obtained photographs from Facebook which supported the position that the Husband was working and earning income. There were photographs of the Husband operating heavy machinery. The court used this information to impute income of Husband for the purposes of child support.

 c) Child’s Best Interests:

Wolodka v. Wolodka, 2013 NSSC 207 (Supreme Court, Family Division); Maintenance and Custody Act, RSNS 1989, c. 60, s. 18(6), as amended (impact of family violence, abuse or intimidation). Mother relied on Facebook postings of Father. Wilson J. concluded that it was best to have the custody of children with the Mother and not shared care as requested by the Father.

d) Paternity:

D.F. v. K.G., 2018 NSSC 65; Mother advised father the child was not his. In 2015, a co-worker showed him photographs from the Mother’s Facebook page. He was “shocked” to see images of a young boy who looked very much like he did as a child. The court did not order paternity testing at this time. The Court found that “ordering paternity testing now because of the Applicant’s belief he’s D’s biological father largely based on Facebook pictures he saw in 2015, is not warranted”.

Civil Procedure Rules and Facebook

Conrad v. Caverley, 2014 NSSC 35 (CanLII) – the defendant went to court to ask for an order requiring the plaintiff to produce a full, printed copy of her Facebook profile, including the information and photographs that – due to her privacy settings – were only visible to her “friends”. He also asked for a printed copy of her Facebook usage history, including her login/logout information. Order for disclosure of Facebook usage history only. McDougall J. stated that the burden is on the party requesting the Facebook information to satisfy the court that the materials sought meets to the standards of trial relevancy. Civil Procedure Rule 14.01(1) defines “relevant” as having the same meaning as at the trial of an action.

Murphy v. Perger, (2007) O.J. No. 5511 (unreported – court file no.: 45623/04 – released October 3, 2007 – Ontario Superior Court of Justice). – Facebook “documents” as evidence. Facebook pages ordered to be produced because of the public nature of the website. Court concluded that “any invasion of privacy [was] minimal and outweighed by the defendant’s need to have the photographs in order to assess the case.” He further stated that the plaintiff does not have any serious expectation of privacy because 366 people (the plaintiff’s friend’s list) were granted access to the plaintiff’s private site.

Practice Tips

It should be noted that if counsel wish to rely on emails, text messages or Facebook information, it is suggested that it should be included in an exhibit book.

Pinnington, Dan, “Nine Rules to Help Family Law Clients and Their Lawyers Avoid Social Media Dangers”, July 20, 2012, in the Lawyer’s Weekly;

  1. There are really no secrets on Social Media sites;
  2. Friends means friends forever, or at least friends of friends forever;
  3. Give clients a “Don’t be Stupid on Social Media” warning;
  4. Don’t use social networking tools for lawyer/client communication;
  5. Be aware of electronic evidence and eDisclosure obligations;
  6. Social Media can prove interesting things;
  7. All of the above comments apply to everyone else that touches a case;
  8. Family lawyers shouldn’t be friends with clients on Facebook;
  9. You cannot be anonymous on the web.

Clients should be advised that pursuant to section 94(1) of the Children and Family Services Act sharing identifying information, from a court proceeding verbally, in writing or through the Internet, including through social media such as Facebook, Snapchat or Instagram, is an offence.

Other electronic sources of information may include Instagram, Snapchat, LinkedIn.

Articles

Arnott, Kim. “Social media postings creating a litigation ‘gold mine’”, March 2017, The Lawyer’s Daily.

Chisolm, Patricia. “Grappling with Social Media”, Canadian Lawyer, July 4, 2016.

Korpan, James; Fieger, Aadon. “Teaching Old Dogs New Tricks; Using Text Messages and Social Media as Evidence” (2014).

McDonald, Bryson. “Think twice before your post; Can posts on Facebook be used as evidence in my family law matter?” (2015)

McKiernan, Michael. “Social media evidence plays important role in litigation”, July 2017, Law Times.

Pantekoek, Kellie. “Nine Times Facebook Can Get You In Ethical Trouble” (2014).

Thompson, Rollie, “The Ten Evidence “Rules” Every Family Lawyer Needs To Know” (2014) National Family Law Program Conference – note Rule 8-Illegally Obtained Recordings, Emails etc.

Wong, Anna. “Social Media Increasingly Relevant To Litigation” (November 14, 2014) in The Lawyers Weekly.

Approved by Council on April 28, 2017; Revised May 7, 2018