Internet and Social Media Defamation

I commonly receive telephone calls related to internet and social media defamation. The internet and social media are ripe with slanderous statements posted by people who perceive they have absolute anonymity. These posts can impact people’s careers, their families, and their reputation. When I get these calls, I generally consider several questions:

  1. Are the comments defamatory?
  2. Are there valid defences that could be raised by the internet poster?
  3. Do we know who posted the information or could we find out?
  4. If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?
  5. Does pursuing the poster make financial sense?

Are the Comments Defamatory?

It is not hard to prove that a comment is defamatory. Basically, you need to prove that a statement was made that would negatively impact a person’s reputation. It should be kept in mind that a random, negative comment such as “I hate that guy” or “He sucks” may not negatively impact someone’s reputation. It really depends on context, including where the comments are posted.

Are there valid defences that could be raised by the internet poster?

There are many possible defences to defamation claims. Some of the most common in internet cases are:

  1. Justification (truth); and
  2. Fair comment (opinion).

Truth is a defence to a defamation claim. Truth can sometimes be hard to prove if a poster does not have first-hand knowledge about what they are posting about. If they are reliant on the statements made by others, there is an open question as to whether that third party will actually back up the claims if push comes to shove in a court proceeding. The poster has the onus of proving the truth of the comments.

Defamation law also protects people from expressing opinions if those opinions are based on “true facts”. For instance, if someone posts a negative review for a restaurant because they did not like their meal, the poster’s opinion is protected. On the other hand, if the poster has a grudge against the restaurant owner and did not actually eat there, but then posts a negative review pretending like they had a bad meal, those comments are not protected by “fair comment” because the comments are not based on “true facts”.

Do we know who posted the information or could we find out?

A practical problem with the internet is that a lot of comments are made anonymously or under a pseudonym. In many cases, a person can seek a court order to require the website or social media company to provide details as to the IP address and the registration information for the poster, but that does not always reveal the actual poster. Thus, there can sometimes be some practical barriers to pursuing information about the poster. Also, obtaining a court order to reveal a poster’s name can be an expensive proposition.

If we know who posted the information, are there obstacles that would make pursuing a legal claim impractical?

One of the main obstacles with defamation cases is where the poster is located. If the poster is in Canada, a defamation claim is relatively straightforward. However, if the poster is a non-Canadian, there can be practical issues associated with pursuing that person, depending on the jurisdiction.

The United States is particularly difficult because of the SPEECH Act (Securing the Protection of our Enduring and Established Constitutional Heritage Act). This Act makes foreign libel judgments (including Canadian judgments) largely unenforceable in U.S. courts. The SPEECH Act also generally makes it so that a U.S. company can ignore a Canadian order requiring disclosure of a poster’s identity.

In addition to jurisdiction issues, a court proceeding is public. Some people do not want the potential exposure and publicity associated with starting a court action. Thus, it may not make sense to start a court proceeding if the internet posting is likely to fade from public consciousness quickly.

Does pursuing the poster make financial sense?

This is a major consideration in any defamation case. The cost of obtaining orders to disclose a person’s identity coupled with the cost of starting a legal action can sometimes exceed what the court might award for damages. In Saskatchewan, we have had “successful” defamation cases where a plaintiff was awarded $10,000-20,000. Likely, the legal costs exceeded that amount of money in those cases. I generally also question whether the poster has any money to pay a judgment.

However, there are cases where a person might have lost a job or business, where the damages might be significant. In a recent case, a Saskatchewan court ordered $240,000 in damages for posting false information on a website.

Conclusion

Internet defamation cases are increasing, and they are complex. Our legal team at Robertson Stromberg LLP would be happy to assist you with any advice that you need in pursuing or defending against an internet defamation case.

How to avoid your Will from becoming challenged after you die

More and more wills are being contested in Saskatchewan each year. And the sad truth is that many challenges are avoidable if the will-maker had done one or both of the below things:

  1. Hired a lawyer to draft their will, and keep good notes of their instructions;
  2. Told the will-maker’s family of the terms of the will, before they died.

On numerous occasions I have seen situations in which a person had sought to avoid the cost of a lawyer-made will. They therefore draft their own will. When the person later passes away, the result is sometimes a confusing will, often made in secrecy and without any independent notes showing the true intention. This situation often spawns litigation, which can then drain tens of thousands of dollars in legal fees from the estate. 

Thus, the first lesson is this: think carefully about perhaps hiring a lawyer to make your will. Moreover, if possible, look for a lawyer who actually specializes in wills and estates, and better knows all of the questions to ask, and situations to avoid.

Second, talk through your goals and assets with your children, and keep notes of such conversation. This is especially true if your new will is making a departure from a prior will. It is far more difficult for a child to later suggest you had dementia, or were pressured into making your will, when the child had the opportunity to talk about your will with you in person.

A will is one of the most important pieces of paper you can ever sign. It can control who is left in charge of your children, your home, and your savings. It is meant to give you peace of mind that when you pass on, your wishes will be followed. It is therefore worth putting in the time to ensure your will is done right.

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Can my child choose where they want to live?

The short answer is no. However, the wishes of children can be considered in determining parenting arrangements. As the Court does not want children to participate in family law disputes, this article briefly touches on how to put the wishes of a child before the Court for consideration. 

To begin, regardless of the age of the child, there is no law or legislative principle that the wishes of a child dictate the parenting arrangement.  (See M.L.S. v N.E.D., 2017 SKQB 183; Redstar v Akachuk, 2013 SKQB 223; and Kittelson-Schurr v Schurr, 2005 SKQB 90.)

However, a child’s wishes can be an important consideration in determining a parenting arrangement that serves their best interests.  The wishes of young children aged 11 and younger, are typically not taken into consideration by the Court. The Court is of the view that young children are not sufficiently emotionally or intellectually developed to articulate their true feelings.

Children are capable of forming their own views at 12 years of age, which Family Justice Services recognizes for the purposes of conducting a “Voices of the Child” report.

If a matter is proceeding to Court, either by a trial or an interim Chamber’s application, a “Voices of the Child” report can be of assistance in putting the wishes or desires before a judge for consideration.

A Voices of the Child report may be ordered by a judge at any stage of a family law proceeding and the reasons the Court orders Voices reports vary widely. For example, a Chamber Judge, may order a “Voices of the Child” report when conflicting affidavits about the “wishes” of teenage children have been presented. Voices of the Child reports are also ordered at Pre-trial Conference solely for the assistance of the trial judge, who is tasked with determining the parenting arrangement.

However, there is no automatic right to having a Voices of the Child report prepared.

In addition to the age requirement (child must be 12 years old or older), a party seeking to put forward their children’s wishes with respect to the parenting arrangement, must present evidence that leads the Court to conclude that a Voices report would be of assistance in determining the parenting arrangement in the child’s best interests.

If your child is above the age of 12 and has expressed views with respect to the parenting arrangement, a Voices of the Child report can be of assistance to the Court in determining a parenting arrangement.

In the right circumstances, your child’s wishes as expressed through a Voices Report can be the determining factor. In a recent Saskatchewan Court of Queen’s Bench decision, the Court found that irrespective of both parents’ capabilities of caring for the children equally, that a child’s wish was the “most dominant factor” in considering whether the relocation was appropriate. In that case, the child expressed a wish to relocate with the mother. Given the assistance of the Voices of the Child report, the Court granted the mother’s request to relocate with the children (A.R. v R.R., 2016 SKQB 206).

The family law lawyers at Robertson Stromberg LLP can assist in obtaining a Voices of the Child report and your parenting needs more generally.

Retroactive Child Support: Should you be Worried?

The recent Supreme Court of Canada decision, Michel v Graydon, 2020 SCC 24  is likely going to cause late night anxiety for some parents as the Court determined that, no matter how old the “children” are, parents may still collect unpaid child support from the other parent.  

In Michel v Graydon, the Court unanimously ruled that a British Columbia father must pay $23,000 in retroactive child support to his former common-law partner and child, even though the “child” is now 29 years old.

The Court held that child support is a right that belongs to the child, it is not something that parents can negotiate away. Child support should provide the child with the same standard of living they had prior to parental separation. Payments required of a parent must be reasonable when taking payor income into account. Back payment orders, or retroactive child support orders, hold parents accountable to responsibilities they may have neglected.

The judges in Michel v Graydon unanimously agreed that the prevention of retroactive child support places a disproportionate burden on women as caregivers. The Court further noted it would be wrong to create an incentive by granting payor parents immunity after the child ceases to be “a child of the marriage”.

“The courtroom doors should not be closed because certain categories of debt owed to children are classified as coming too late”.

The Supreme Court was clear in their message to parents who knowingly avoid or diminish their child support obligations, payor parents will no longer profit from bad behaviour.

Should you have any further question about collecting retroactive child support, or need advice on your family law matter, please contact Robertson Stromberg LLP.

 

Saskatchewan Estate Litigation Update

An interesting recent estate litigation decision out of Saskatchewan is Leason v Malcolm, 2020 SKQB 102.

Leason reminds us that once a  bequest is vested, it may not be divested. In other words, if a beneficiary survives the testator, but the beneficiary then dies before actually receiving their share of the estate, the  beneficiary’s estate will still be entitled to receive the share.

Background

In Leason, the deceased was one Donald Aronetz who died on September 9, 2018. At issue was a gift that his Will made to Jennie Leason. Jennie Leason then died on December 24, 2018, some 15 weeks after Mr. Aronetz had died.

Facts in Leason

Under estate administration law, the bequest to Jennie Leason in Mr. Aronetz’s will would have taken effect (would have vested) on the date of his death, September 9, 2018, when Jennie was still alive. Her subsequent death would have made no difference to that circumstance, and her share of the estate would be payable to her estate.

The bequest in Mr. Aronetz’s will, however, was unusally worded. It read as follows in paragraph 2:

2. … I gift my estate in equal shares unto any SURVIVING siblings, who at the present time are named as follows: (a) Jennie Leson [sic] …, (b) Anne Malcolm …, (c) John Aronetz …, (d) Lillian Whitfield …, (e) Mike Aronetz …, (f) Nick Aronetz …. In the event either of these siblings predecease me or die before having benefited in whole or in part from this my estate, I direct any such undistributed share shall NOT be redirected unto any spouse or child of such a deceased person, rather such an undistributed share shall be equally redistributed amongst the remaining SURVIVING siblings. I have not mentioned any other siblings who have already predeceased me, as this is consistent with my wishes to gift only unto surviving siblings.

[emphasis added]

The respondent applied for letters probate in Mr. Aronetz’s estate in December 2018, while Jennie Leason was still alive, and the executor of Mr. Aronetz included Ms. Leason in the list of beneficiaries of Mr. Aronetz’s estate. The executor however received the grant of letters probate in Mr. Aronetz’s estate in January 2019, after Ms. Leason had died. The executor had not distributed any part of the estate to Jennie before Jennie died.

The issue before the Court was whether the estate of Jennie Leason was a beneficiary of the estate of Donald James Aronetz.

In light of the above provision in paragraph 2 of Mr. Aronetz’s will, the executor of Mr. Aronetz’s estate took the position that Ms. Leason is no longer a beneficiary of Mr. Aronetz’s estate.

The Decision of the Court

The Court interpreted clause 2 above as providing for:

  1. a gift to vest on Aronetz’s death; and
  2. if there was a subsequent death of a beneficiary, before distribution, the gift would be divested.

The Court then turned to consider whether this testamentary intention should be enforced?

The Court held that such intention was contrary to the established legal principle that once a bequest is vested, it cannot be divested. As such, the above provision of Mr. Aronetz’s Will was not enforceable. The Court concluded as follows:

[30]         I conclude, then, that in law a testamentary direction that purports to reverse a gift that earlier had become effective is not enforceable. Put another way, a bequest once vested may not be divested.

[31]        The bequest to Jennie Leason, in Mr. Aronetz’s estate, was effective at the moment of Mr. Aronetz’s death. The gift vested – was de jure receivable – on his death. Ms. Leason’s subsequent death, before she actually received any part of the estate, does not affect the full vesting of her interest in the estate at the moment of Mr. Aronetz’s death. Mr. Aronetz’s direction that in such a circumstance Ms. Leason’s share should go to the other named beneficiaries, rather than to her estate, is not enforceable. 

As such, the Court held that the estate of Jennie Leason was indeed a beneficiary of the estate of Donald James Aronetz, and entitled to receive the gift as if the gift had in fact been distributed to Jennie during her lifetime.

Legal costs:

As an interesting aside,  the Court awarded full indemnity (dollar for dollar) legal  costs to both sides. Their full legal costs were thus payable out of the estate of Donald  Aronetz.

The Court noted the entire court application had been necessitated by the provisions of Mr. Aronetz’s will, and by no fault of the executor, nor the fault of the heirs of Jennie Leason. The Court held that it had been reasonable for the applicants to bring the application, and it was reasonable for the respondent to oppose it.

As such, Leason also serves as a reminder to ensure that a Will is carefully drafted. This will better avoid the risk that a court proceeding may be required to give effect to your Will (as such court application may dilute your estate through awards of legal costs).

 

James Steele’s preferred practise area is estate litigation, including will challenges, executor disputes, power of attorney issues, etc. Contact James Steele at 1-306-933-1338 or j.steele@rslaw.com. The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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