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  • Writer's pictureJared Davies, Lawyer

The recent decision of SB v JIU, where a parent’s cyberbullying constituted family violence


Overview


In a world of online space, parents often take to social media to disparage the other parent. This can make the victim parent feel relatively helpless given that the internet would seem to be beyond the jurisdiction of the Court. In the current case, the mother was granted an order offering a different view as it pertains to internet postings:


“…if any content described in paragraph a) remains, or if any content described in paragraph b) is added, the mother shall put any internet service providers, websites, website hosts, or social media companies on notice that the court has ordered this material to be removed and they shall ask those organizations to remove the content and close the father's websites or accounts. If those organizations do not respond within 30 days, then the mother may bring a motion, on notice to the organization, for an order to compel the appropriate organization to remove the content and close the websites or accounts.”


Part of this order was founded on the proposition that the father’s actions constituted family violence. Family law legislation has recently undergone major amendments. One of those amendments was the inclusion of a broader provision for violence in family settings. SB v JIU applies the new family violence section in the Children’s Law Reform Act to a cyberspace context. In the current case, the father was alleged to have done various wrongs, including posting the mother’s birth certificate and passport on the internet.


The Law


Family violence is a hot topic in family law. Subsection 18(1) of the Children’s Law Reform Act says:


[F]amily violence means any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct.”


Family violence is listed as a consideration in the best interests of the child analysis, pursuant to clause 24(3)(j). In other words, family violence must be considered when making parenting time and parenting decision orders. Section 24(4) of the Children’s Law Reform Act reads:


(4) In considering the impact of any family violence under clause (3)(j), the court shall take into account,

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve the person's ability to care for and meet the needs of the child; and

(h) any other relevant factor.


These factors, quite obviously, expand the scope of family violence. It responds to complaints that family court has not considered family violence enough, prior to these amendments. This new definition has been applied in SB v JIU.


A summary of SB v JIU, 2021 ONCJ 614


In SB v JIU, mom sought two orders on motion: First, that the father remove all social media posts, commentary and videos about her and the children. Second, she sought a restraining order against the father.


The Court cited Yenovkian v Gulian, 2019 ONSC 7279, where the father posted photographs and videos of the child on the internet, revealing personal and identifying information about the child. He also had a website with links to his YouTube videos, showing his court-ordered parenting time:


“The father has posted significant personal information about the children on the internet, including posted court-ordered access visits with the children on the internet, and has edited and labelled pictures and videos of the children, often with critical commentary, on the internet.”


In Yenovkian, there was a civil action between the mother and father, that was heard alongside the family law issues. In the result, the father was ordered to pay mom, “$50,000 damages for the tort of intentional infliction of mental suffering, $100,000 damages for the tort of invasion of privacy (public disclosure of private facts and publicity placing the plaintiff in a false light) and punitive damages of $150,000.” In other words, the father’s actions costed him $300,000.


In citing a purely family law case, the Court also noted the very recent judicial reasoning of McLellan v Birbilis, 2021 ONSC 7084:


“The new definition [of family violence] provides a non-exhaustive list of conduct that constitutes family violence. This assists the court in identifying the nature and extent of the family violence. The definition does not preclude the court from finding that other conduct fits within its meaning, such as cyber-bulling for example.”


Finally, the Court made note of the fact that clause 28(1)(c) of the Children’s Law Reform Act has been used to prevent a party from making negative social media posts about the family in the past, as well as section 87(8) of the Child, Youth and Family Services Act, which provides that no person shall publish information that has the effect of identifying a child who is a participant in a hearing or subject to proceedings.


In the current case, SB v JIU, the father:


“…posted on the internet court documents and a court order from the child protection case from 2018, case notes from the Children's Aid Society of Toronto (the society), correspondence exchanged with the society and criminal court documents related to a prior criminal charge against the mother — charges that were withdrawn by the Crown.


The father has posted on the internet a photograph of the mother's birth certificate and portions of her passport, leaving her vulnerable to identity theft.


The father has posted videos and photos of the mother and the children on the internet with malicious commentary about the mother's character and ability to parent. He accuses her of kidnapping the children, hiding evidence from the court with the help of the society and being involved in a conspiracy with the police, the society and the court.


Many of the father's postings are on his own website.


The father claimed that he has no control over this website — that others are making these postings — perhaps even the mother, who he claims is sophisticated in internet technology…


…It also appears that the father created a Facebook account in the mother's name in the spring of 2021 to further denigrate her. He posted a photo of her passport, contents of her purse and a picture of himself.


It appears that the father regularly changes the location of his social media postings about the mother and the children…”


The Court made clear that this constituted family violence and that if he did not remove all the internet content, there would be several serious consequences flowing from contempt of court, including major costs, imprisonment, and less contact with his child. Unsurprisingly, the mother was granted her restraining order against the father, and upon breaching which, the father could face up to two years in prison.


Perhaps most significant for parents, any finding of family violence will be heavily weighted in a parenting and decision-making order. In other words, the Court will consider the father’s family violence in deciding his role in the children's lives.


Conclusion:


Obvious takeaways? Considering the new amendments, the analysis of family violence is expanding. Parents who take to social media to disparage the other parent regarding parenting matters are potentially engaging in family violence, which can have serious consequences in a courtroom.



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