For those who are about to enter, or are in the very midst of, a long and arduous legal dispute, beware the ineffaceable nature of social media activity. The sands of time might erode Rome and the Pyramids, but they will bounce off the public record of your impassioned posts and hyperbolic tweets. Keeping in mind that such evidence lasts forever, and is also readily accessible, devoid of context, and cheap to procure, litigants may be wise to keep their online communication to a minimum – lest they spoon-feed their opponents material that could later prove hamstringing and self-defeating.

In recent years there have been stories about criminals sharing their crimes with the world via Facebook Live. In family law, we have seen a support claimant attain more support by citing a payor’s lavish life on Instagram, and a father’s custody compromised by his errant Youtube video. In estates law, where there is often mystery and ambiguity involved with testamentary intention, and much of the evidence is “he-said-she-said” – in other words, uncorroborated parole evidence tainted by self-interest – parties scramble for whatever concrete material they can find, such as a screenshot of a social media tirade.

In one recent Ontario decision (Lyons v. Todd, [2019] O.N.S.C. 2269), a man not only dragged out litigation against his sister, who was the estate trustee, but engaged in a campaign of harassment, menaces, and defamation – all of which the court was able to scrutinize with ease:

“The transcription of voice messages, copies of emails and other social media posts, establish that Bob threatened to make what he described as Victoria’s ‘perverted’ sex life public. He threatened to expose her to the clients of the Park and bankrupt her with the costs of litigation if she did not settle. With some of the Facebook posts, he posted the location of the Park.”

The court did not accept the man’s argument that the posts were unrelated to the proceedings, finding instead that the “gratuitous humiliation and embarrassment” the estate trustee suffered was a further reason for which she should receive the $60,000 in costs that she requested.

In Nova Scotia (Public Safety) v. Lee, [2015] N.S.S.C. 71, a man came under the fire of CyberSCAN and the Director of Public Safety, which are government bodies mandated with the policing, punishment and prevention of cyberbullying. The man was purportedly vexed with his sister, who was the sole beneficiary of the mother’s will. The rambling posts were addressed to “anybody out there in Facebook land” and the “cowards in my family”, but in fact the speech was tantamount to a naked admission before a stern court.

The frustrated litigant or potential litigant who needs to vent would be safer, and likely more satisfied, by confiding his or her troubles to a friend in a private setting rather than airing from a veritable rooftop grievances which will echo for the end of time.

Thank you for reading,

Ian Hull and Devin McMurtry