Law Times

Law Times • sepTember 5, 2016 Page 13 www.lawtimesnews.com Manage social media to avoid legal fallout BY MICHAEL MCKIERNAN For Law Times T he increasing role of online evidence in fam- ily court cases has made social media skills a ne- cessity at the province's family law boutiques, according to law- yers in the field. With almost three decades in the business, Cheryl Goldhart admits she's no digital native, but the principal at Toronto firm Goldhart & Associates prides herself on staying up to date on the latest developments in social media on sites such as Facebook and Twitter. "Things are different from when I started, but I think law- yers have to understand that peo- ple communicate in a very dif- ferent way than we did 30 years ago," Goldhart says. "You have to be able to have a conversation and properly advise clients of the potential dangers of putting all kinds of information out there." At London, Ont. firm McK- enzie Lake Lawyers, family law partner Carolyn Lloyd says her social media warning comes almost immediately in her first meeting with clients. "In a perfect world, our clients would deactivate all accounts until their case is resolved, but I don't think that's realistic the way the world works now," Lloyd says. "Some will use social media as a support system, but I tell them it's something to be very careful about. If they try to rally friends to their side, it can sometimes ref lect poorly on them. I think it's good to spell out some clear parameters over their use, and to emphasize that nothing they say should ref- erence their family law case." If they insist on continuing to use their accounts, Lloyd advises clients to boost their privacy settings as far as possible. After deactivating her own Facebook account for a time, she learned from personal experience that certain information reverts to becoming publicly available when accounts are reactivated. "They change the privacy set- tings so frequently; you have to keep checking so you know who can see what you're posting," Lloyd says. At Goldhart & Associates, the firm's extensive retainer letter spe- cifically refers to guidance around electronic communications. "Traditionally, our courts dealt with he-said, she-said dis- putes. Now it's he-wrote, she- wrote. People are writing away, and it's all becoming evidence. We tell clients to think twice be- fore they say something in anger without thinking of the conse- quences, because it could end up in front of a judge," Goldhart says. "That stuff is there forever. It doesn't die, even when you die." "People sometimes think say- ing something to a friend on Facebook is the same as if you're out with them having a coffee, but it's not. When you're out for a coffee, it doesn't leave a perma- nent record," says Andrew Feld- stein, a Markham, Ont. lawyer who hands clients a list of social media dos and don'ts when they hire his firm, the Feldstein Fami- ly Law Group. "Whether it's Face- book, Instagram, LinkedIn or whatever, it's all fair game. If you say something negative, it could be used against you." Feldstein instructs clients to remove former spouses from their social media profiles, but he says they still need to take care when posting, since the chances are high that informa- tion will get back to them via shared networks of friends and end up in court files. For example, in the 2015 case of Tran v. Tran, Ontario Supe- rior Court Justice Frances Kite- ley 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. Lloyd says courts may even place greater weight on social media posts where the evidence conf licts with information pre- sented directly in court, point- ing to the 2011 case of B.V. v. P.V. In that case, Ontario Superior Court Justice William Hourigan relied on the evidence of a moth- er's Twitter feed over her testimo- ny in court when it came to the issue of how heavily she drank. "Based upon the respondent's Twitter postings, it is clear that she engages in a pattern of ex- cessive consumption of alcohol. The Twitter postings reference her making inappropriate phone calls while intoxicated and being hung over," Hourigan wrote. Feldstein says clients are often proactive about seeking infor- mation on former spouses on- line, but he warns they could do more damage than good to their case by hacking into accounts or duping other parties into believ- ing they are someone else. And online evidence doesn't always have to make it to court in order to have an effect, he says. Feldstein once negotiated a fa- vourable settlement out of a hus- band on the opposing side of a file after an extensive search turned up an online boast about how many customers he had served over a 20-year period. Since his business offered a fixed-rate ser- vice, Feldstein was able to make a rough calculation of his total revenue over the period, reveal- ing a "significant amount of un- reported income," he says. LT family law The annual Canadian Lawyer Corporate Counsel Survey canadianlawyermag.com/surveys In-house counsel – weigh in on your relationship with external law firms. SURVEY IS OPEN AUGUST 15 - SEPTEMBER 12 LEGAL OPINIONS WANTED! Untitled-6 1 2016-08-30 1:51 PM Childview_LT_Sep5_16.indd 1 2016-08-30 9:25 AM Andrew Feldstein says he instructs clients to remove former spouses from their social media profiles. People are writing away, and it's all becoming evidence. Cheryl Goldhart

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