Category: Online presence

16 Sep

Congratulations Britney!

Doreen So Capacity, Common Law Spouses, Estate Planning, Ethical Issues, Executors and Trustees, General Interest, Guardianship, In the News, News & Events, Online presence, Recently, Uncategorized Tags: , , , , , , 0 Comments

 

Our blog has been following Britney Spears’ conservatorship proceeding closely in the recent months.  So far, the #FreeBritney movement has seen significant progress through the appointment of a new lawyer for Britney, and very recently through Jamie Spears’ petition to end the conservatorship.  Even though Britney is still under a conservatorship of property and of person, the iconic popstar surprised the world with her engagement to long-time boyfriend, Sam Asghari.

This fantastic news follows Britney’s stunning court testimony back in June that she wanted to be able to get married and have a baby but that she was told that she could not do so because of the conservatorship.

To celebrate Britney’s engagement, I wanted to share Justice Benotto’s words in Calvert (Litigation Guardian of) v. Calvert, 1997 CanLii 12096, as affirmed by the Court of Appeal in 1998 CanLii 3001, with leave to the Supreme Court of Canada dismissed:

“A person’s right of self-determination is an important philosophical and legal principle. A person can be capable of making a basic decision and not capable of making a complex decision. Dr. Molloy, the director of the Geriatric Research Group and Memory Centre and associate professor of geriatrics at McMaster University, said:

Different aspects of daily living and decision-making are now viewed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision- making capabilities and assessments.

[…]

The contract of marriage has been described as the essence of simplicity, not requiring a high degree of intelligence to comprehend: Park, supra, at p. 1427.”

While the foregoing passage may not sound particularly romantic, the notion that marriage is the essence of simplicity seems rather befitting to the intimate decision that was made between Britney and Sam.

Britney is not yet a “freed” woman, but as her song goes,

”All I need is time (is all I need)

A moment that is mine

While I’m in between”.

Thanks for sharing your engagement moment with us Britney! Click here for the video of “I’m Not a Girl, Not Yet a Woman”.

Doreen So

06 Nov

Social Media Evidence In Estates Litigation

Ian Hull Estate & Trust, Estate Litigation, Litigation, Online presence, Wills Tags: , 0 Comments

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

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