It is more often than not that ugly allegations of misconduct are thrown between divorcing parties. Courts are used to these mudslinging matches which are generally given little weight unless particularly on point. Also, the usual place to launch such verbal attacks is within the four corners of the lawsuit. While a judge may penalize the more morally outrageous and unsubstantiated allegations so long as they are within the four corners of the lawsuit they are privileged and not capable of being the foundation of a libel and slander action.
However, when one steps outside the courtroom and into the minefield of social media, by repeating those allegations the dart thrower may be subject of a civil lawsuit of defamation.
Also complicating the court’s job are the provisions of Section 137.1 of the Courts of Justice Act, commonly referred to as anti-SLAPP provisions, which is an acronym that stands for strategic lawsuit against public participation. That section of the Act allows the defendant in a defamation lawsuit to have it dismissed on the basis that it will unduly eliminate or limit legitimate criticism about a matter of public interest. The concept is to encourage individuals to express themselves on matters of public interest and to discourage the use of litigation as a means of unduly limiting expression on matters of public interest.
In the recent June 11, 2021 decision of Justice Gomery in Smith v. Nagy, a divorce had descended into some very nasty and salacious allegations between the parties.
Husband and wife before they separated letter led a very sexual relationship, including performing in adult films and the production of avant-garde art work. After the separation, the wife posted via Facebook allegations that the husband had caused her to suffer post-traumatic stress disorder and that he had subjected her to sexual, psychological and emotional abuse. The post on Facebook was widely distributed and the husband outside of the family law lawsuit, countered by commencing a civil action for defamation. The wife moved to dismiss the husband’s civil lawsuit relying on both the SLAPP provisions and further claimed that her statements were true and constituted fair comment or are protected by a qualified privilege. Such a civil suit may very well be tried together with the divorce action. Justice Gomery dismissed the wife’s motion and permitted the defamation action to continue. The issues at point the court felt were particularly important. There appeared to be little doubt from reading the evidence provided by the husband in the motion that he had truly suffered significant financial and personal loss as a result of the wife’s Facebook posting.
Words of warning, 1. Stay within the court playground and 2. Once again social media is a two-edged sword and from this writer’s perspective, the benefit of its entire existence has yet to be established.