The Revenge of Facebook, Part I

I've often thought of writing about the modern mischief Facebook seems to egg on, but it's always seemed too easy a target. The notion of being "unfriended" just isn't as funny as it used to be. And then along comes Nesbitt v. Neufeld, a November 2010 decision of the Supreme Court of British Columbia, and I am reminded that there are still lessons to be learned.

Dr. Nesbitt and Ms. Neufeld had been engaged it what the judge described as "protracted family court litigation" and resulted in Ms. Neufeld having primary care of the child, with Dr. Nesbitt having supervised access. I'm sure the litigation rankled. In any event the recently-published decision of Mr. Justice Crawford concerns not the family law litigation but an action in which Ms. Neufeld sought damages for defamation and breach of privacy from Dr. Nesbitt.

Ms. Neufeld's complaints centred around a variety of publications the court found to be authored by Dr. Nesbitt, including the "Wicked Wendy Neufeld" website (some related material can still be found on blogspot) featuring material from the family law litigation and some of her private communications, and a Facebook page titled "Wendy Neufeld Support Group" containing hurtful and sarcastic comments. To quote the judge, "that Dr. Nesbitt would dress his vitriol in such shabby clothing shows again a complete lack of social awareness."

Anyhow, the point here is that we as a society are well past the posting of anonymous pages on telephone poles. We live in the internet age where the scurrilous vituperations of an aggrieved individual are spewed across the globe for all to read in a second, and, just as the audience is massive, all that's required to discover it is a single ego-search. Hit PRINT and the broadcast is there to be attached to your next affidavit as Exhibit "A". Again, here's Mr. Justice Crawford:

"In this age of instantaneous broadcast to an innumerable number of people over the Internet, courts have acknowledged the aggravating factor this can have in determining whether the conduct at issue is defamatory and if so what the quantum of an award of damages should be."

The judge decided that Dr. Nesbitt had taken his custody fight with Ms. Neufeld "far outside the ordinary confines of the family court litigation," and awarded damages of $40,000 to Ms. Neufeld for breach of privacy and defamation, plus her special costs of the litigation on the basis that Dr. Nesbitt's conduct was "deserving of the Court's reproof."

I have to admit that I see things like this fairly frequently in my practice, sometimes as a result of wounded feelings, but sometimes and far worse as a result of a desire for revenge or retaliation. I won't moralize and tsk-tsk about the stupidity of such websites, blogs and Facebook pages; that ought to be obvious. Just remember that it's as easy to find and print these things as it is to post them, and I guarantee that they will find their way into an affidavit at the most inconvenient time possible.

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What's "Without Prejudice" and What's Not

You'll often see certain lawyer's letters marked "without prejudice," and it's not always clear what "without prejudice" means, particularly for people who aren't lawyers. The question has recently come up in a file of mine, and I thought I'd take the opportunity to explain things.

"Without prejudice" protects settlement proposals

Because of the incredible expense and degree of uncertainty involved in trials, lawyers will usually make many attempts to settle a case before it heads to trial. Although settlement efforts can take many forms, the cheapest is correspondence: the exchange of letters setting out the terms on which the lawyer's client would be prepared to settle the case.

As a general but not invariable rule, settling a file means finding a compromise between the parties' positions, which means that neither party gets everything he or she is looking for. Someone who is asking for sole guardianship might compromise and agree to an order for joint guardianship as long as he or she has the children's primary residence; someone who is asking for 70% of the family assets might compromise and agree to take half the family assets as long as spousal support is paid for a certain number of years.

Now, although compromise might be necessary for settlement, the position a party takes to achieve settlement is rarely the position that the party takes at trial. At trial, the person seeking sole guardianship is still going be demanding sole guardianship, and the person after the majority of the family assets is still going to be after the majority of the family assets. But if this is the case, which it usually is, people need a way to communicate settlement proposals without affecting their positions at trial. In other words, if you're suing for twelve 1972 Ford Pintos, you need to be able to propose settlement for six 1972 Ford Pintos and three 1973 Ford Pintos without being held to that position at trial.

This is where "without prejudice" letters come in. Marking a letter "without prejudice" protects the contents of the letter from being disclosed; the letter is being sent without prejudice to the party's position at trial.

To be clear, however, just marking a letter "without prejudice" isn't going to automatically exclude the letter from use at trial. To be excluded, the letter must actually contain a settlement proposal; as our Court of Appeal said in a 1984 case called Belanger v. Gilbert, "not all letters so marked are to be held inadmissible." In another appeal case, Schetky v. Cochrane, from 1918, the court set out what was required to protect "without prejudice" letters:

"... the rule which excludes documents marked 'without prejudice' has no application unless some person is in dispute or negotiation with another, and terms are offered for the settlement of the dispute or negotiation...

"... before the privilege arises two conditions must exist, viz.: (a) a dispute or negotiation between two or more parties; and (b) in which terms are offered"

A "without prejudice" letter that meets this test cannot be put into evidence, whether at trial or as an exhibit to an affidavit.

To be even more clear, it is only the parts of "without prejudice" letters proposing settlement that are protected. A letter that talks about the number of Ford Pintos required to achieve settlement as well as setting hearing dates and the colour of the author's pants, can certainly be be put into evidence about the hearing dates and the author's pants, as long as the portion dealing with the Pintos is blocked out.

Costs

Proper "without prejudice" letters can't even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs. The English Court of Appeal summarized this point in a 1984 case called Cutts v. Head:

"...the court is able to examine and consider such correspondence, where the offeror, in the body of the correspondence in issue, expressly reserves the right to bring the letter to the notice of the judge on the issue of costs after judgment."

(Letters like these are sometimes called Calderbank letters, in reference to the 1975 case from the English Court of Appeal which authorized this narrow exception, Calderbank v. Calderbank.)

Subsequent letters not marked "without prejudice"

Interestingly, the protected status of "without prejudice" settlement proposals also applies to letters written in reply to such proposals that aren't marked "without prejudice." Halsbury's Laws of England says this at volume 15, paragraph 728 of the third edition:

Where the privilege exists, it covers not only the particular letter itself, but also all subsequent parts of the same correspondence on both sides, notwithstanding that they are not expressed to be “without prejudice," unless there is a clear break in the chain of correspondence to show that the ensuing letters are open. Moreover, where a letter offering terms, but not stated to be “without prejudice” is followed by another saying that the communications between the parties are to be “without prejudice” the former letter is protected.

"With prejudice" letters

"With prejudice" letters are different than "without prejudice" letters. Such letters not only deny any claim of protection from production to the court, they say that the letter will be produced to the court.

Of course, because marking a letter "with prejudice" doesn't make the contents of the letter any more true, or any more compelling and persuasive to judge who reads it, it's not entirely clear what is achieved by marking a letter "with prejudice" apart from expressing the author's conviction about the importance or accuracy of the contents.

Summary

1. "Without prejudice" letters allow people to discuss settlement proposals without worrying that their proposals will be held against them later.
2. The phrase "without prejudice" only protects settlement proposals. Marking your laundry list or any other communication "without prejudice" isn't going to stop the document from being used in court.
3. The parts of a "without prejudice" letter that don't talk about settlement can be used in court, as long as the parts which do talk about settlement are blocked out.
   
4. If a "without prejudice" letter is going to be used to argue costs down the road, the letter needs to say so or it can't be used to argue costs.

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Section 15 Reports

"Custody and access reports," "custody assessments" and "section fifteen reports" are some of the names given to reports prepared pursuant to s. 15 of the Family Relations Act. The purpose and scope of these reports can be a bit confusing, because they seem to be treated differently in the Provincial Court and the Supreme Court, because different sorts of people prepare them, and because the scope of s. 15 is really quite broad.

The Family Relations Act

Section 15 says, in part, this:

In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who

(a) has had no previous connection with the parties to the proceeding or to whom each party consents, and

(b) is a family counsellor, social worker or other person approved by the court for the purpose.

(2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.

I've highlighted the bits that are particularly important for this discussion. Essentially, s. 15 says that the court can order that a report on any family issue be prepared by any person, in whatever manner the court directs, and the court can make an order that a report be prepared on its own initiative or on the application of a party.

Most of the time, people want a s. 15 report for the assessor's recommendations about things like where the children should live most of the time and the optimum parenting schedule. It can happen, however, that people want the assessor to look at a specific problem such as a parent's drinking, mental instability, drug use or personality disorder, and comment on how the issue affects the person's capacity to parent.

Provincial Court

Most of the time, s. 15 reports prepared in matters before the Provincial Court are prepared by family justice counsellors, employees of the Provincial Court who have some training in conducting custody and access assessments, and usually have a background in social work or psychology.

These reports are free but they can take a terribly long time to complete, anywhere from six months to one year or more, depending on which courthouse the parties are at. (Surrey and Vancouver are notoriously overburdened courts.) A private psychologist or psychiatrist could probably get the assessment done faster, but they charge for their work and I'd expect that the cost would start at about $3,000 and go up to $9,000 or more, depending on the circumstances and the scope of the report.

The court can order that a s. 15 report be prepared at the first appearance, at any other appearance before trial and at a family case conference. The court generally won't order s. 15 reports at trial... by then it's too late, and ordering the report would only serve to delay the trial.

Supreme Court

Section 15 reports prepared for the Supreme Court are usually done by private psychologists and psychiatrists. Although they come at a pretty significant cost, they can usually be prepared within three to six months, depending on the issues.

The court can order that a s. 15 report be prepared at a judicial case conference or at any application brought before trial. The court will not order the preparation of a s. 15 report at or on the brink of trial.

Rules of Evidence

In the Supreme Court, s. 15 reports stand as expert evidence. "Expert evidence" is different than other kinds of evidence, because it offers an expert opinion about the best parenting arrangements for the children.

(Normally, the only kind of evidence allowed at trial is evidence of facts: "I saw Ted outside the bank," "I have a blue Chevy Pinto," "last year we went to Chilliwack for Christmas," and so on. Opinion evidence is usually about beliefs, assumptions and conjectures: "aliens live on Jupiter," "my cat is better than your cat," or "Jerry is a bad father." Expert opinion evidence is about an expert's professional conclusions about an issue or question beyond most people's knowledge: "foundations need to be drilled to a minimum depth of 6m in Prince George to avoid frost heaves," "gerbils have an average I.Q. of 15" or "the kinematic viscosity of single non-winter grade oils is measured at a temperature of 100 °C in units of mm²/s.")

As expert evidence, s. 15 reports are often subject to the special provisions of Rule 40A about who is an expert and who isn't, introducing expert reports at trial and cross-examining the person preparing the report. The Supreme Court is usually very strict about how evidence is admitted at trial and how expert reports can be used.

Things are a bit different in the Provincial Court. Rule 11(2) deals with s. 15 reports, and this rule doesn't describe persons preparing s. 15 reports as "experts." In fact, the rule seems to treat s. 15 reports entirely differently than expert evidence, which is dealt with in Rule 11(3) to (8). This is probably why family justice counsellors are able to prepare s. 15 reports for Provincial Court: they are not expected to qualify as experts and s. 15 reports are treated differently than the usual sort of expert evidence.

Views of the Child Reports

Views of the child reports are a kind of s. 15 report in which the assessor is hired to meet with the child and report back to the court or the parents on the child's views and wishes. These reports can be prepared by experts (psychologists or psychiatrists) or by non-experts (lawyers, court workers and so forth). They do not recommend or suggest a certain parenting arrangement; they are primarily geared toward finding out what the child's preferences are, even though there's no guarantee that the court will do what the child wants.

Although it probably seems that these reports don't have a great deal of utility, in fact they are very helpful when a dispute is primarily focused on parenting issues, especially in the context of settlement discussions at case conferences. Parents can be profoundly influenced toward reason by a third-party's report of their children's wishes.

When these reports are prepared by experts, the expert will sometimes administer some tests to determine the child's truthfulness and honesty, and the expert may look at difficult issues such as whether the child has been alienated from a parent or whether the child has been coached to have a certain preference.

Non-experts don't have the special skills to administer tests like that or to give opinions about whether a child has been influenced by a parent or alienated against a parent. As a consequence, while their reports are much more limited in scope and usefulness, they are generally much cheaper and faster to obtain than expert's views of the child reports: you're not paying for an expert and the assessor isn't going into an expert's level of detail.

There is another difference between expert's and non-expert's views of the child reports that has to do with the previous discussion about evidence. Expert's views of the child reports are expert evidence that can be used in both the Provincial Court and the Supreme Court. Although non-expert's views of the child reports can be used in the Provincial Court because of the special provisions of Rule 11(2), non-experts won't meet Rule 40A's test for admissibility and can't be used as evidence in the Supreme Court.

Summary

Section 15 is really quite broad. It can be used to make an application for almost any kind of report in a family law case... (I was about to say "except for medical reports and financial reports," but nothing in s. 15 really limits the sort of report the court can order to just issues about children, does it?) ...but is most often used to get an assessment of the parenting arrangements that would be best for the children.

Custody and access reports can take a lot of time to process in the Provincial Court but they are usually free. Custody and access reports can be had much more quickly in the Supreme Court, but since they're done by private psychiatrists and psychologists they can be very expensive.

Views of the child reports are an underused species of s. 15 report, and are usually must faster and cheaper to obtain than custody and access reports, particularly where the report is prepared by a non-expert. They do not have the same persuasive effect on the court that custody and access reports have, however, and non-expert views of the child reports may not be admissible in Supreme Court matters.

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