In a high-conflict separation, the spouse who controls the story often thinks they control the case. They are wrong — and the cost of being wrong has gone up.
In a high-conflict family dispute, many spouses choose to defame the other. They spread rumours through mutual friends and extended family. They post on social media. They tell the children’s school, the family doctor, the Ministry of Children and Family Development — anyone who will listen. The motive is rarely hidden: to seize the moral high ground, to be the wronged spouse, the truth-teller, the one whose version of events the world believes.
Almost every week, a client arrives at my office with the same question: “What can I do about it?”
The British Columbia Supreme Court gave one important answer to that question fifteen years ago, in Nesbitt v. Neufeld, 2010 BCSC 1605. Dr. Nesbitt set up websites about his former partner. He sent letters to her child’s doctor and to the Ministry. He emailed. He published. He told the world, as he saw it, the truth about Ms. Neufeld. The Court awarded Ms. Neufeld $40,000 in damages for defamation and breach of privacy, and special costs because the trial judge described his conduct as reprehensible. The Court of Appeal affirmed.
That was 2010. The internet has only become a louder, faster, more permanent place since. And BC courts have only become clearer that family law disputes do not give either party a licence to defame the other.
“But I was just telling the truth”
Clients who consult me about defamation in a separation fall into two camps. Some want to know whether they can keep telling their side of the story to whoever will listen — friends, family, the kids’ school, the family doctor, social media. Others believe their spouse has crossed a line, and they want to know what can be done.
In both groups, the same misconceptions appear:
- “If it’s true, I can say it.” Truth is a defence — but you must prove substantial truth, with evidence, on a balance of probabilities. Your honest belief is not enough.
- “I was just venting to my sister.” Publication to even one person other than the plaintiff is enough to satisfy that element of the tort.
- “I was telling the doctor for the children’s sake.” Communications with professionals can be protected by qualified privilege — but malice defeats it, and in custody fights, the surrounding evidence often gives a court ample material to examine motive.
- “Family Court is for the divorce. Defamation is a separate lawsuit.” Increasingly, it is not. The two claims can travel together in the same file.
These assumptions are not just wrong. They can be very expensive.
What defamation actually is in BC
A defamation claim in British Columbia has three elements. The plaintiff must prove, on a balance of probabilities, that:
- the words were defamatory — meaning they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- the words referred to the plaintiff; and
- the words were published to at least one person other than the plaintiff.
If those three elements are established, falsity and damage are presumed. Defamation is a tort of strict liability. The defendant’s intentions — even good intentions — do not stop liability from attaching. The onus then shifts to the defendant to make out a defence.
The main defences are justification (substantial truth), privilege (absolute or qualified), fair comment, and — since Grant v. Torstar Corp., 2009 SCC 61 — responsible communication on matters of public interest. In spousal disputes, the defences that actually do the work are justification and qualified privilege; fair comment and responsible communication assume a public-interest dimension that statements between spouses, or about a spouse to a doctor, school, or government agency, will rarely have.
Qualified privilege protects communications made between people who share a duty to speak and a reciprocal interest in receiving the information — a report to a child protection authority, a complaint to a regulator, a candid statement to a treating physician.
But qualified privilege has limits. It can be defeated by malice, by exceeding the proper scope of the occasion (publishing more widely than the duty required), or by using the occasion for an improper purpose. In family law disputes, the surrounding conduct — the medium, the audience, the persistence — often puts motive squarely in issue.
The leading case: Nesbitt v. Neufeld
In Nesbitt v. Neufeld, 2010 BCSC 1605, the parties were locked in a bitter custody and access dispute. Dr. Nesbitt published emails, set up websites, and wrote letters about Ms. Neufeld — including letters to the Ministry of Children and Family Development and to the child’s pediatrician.
The Court found the publications defamatory: they tended to lower Ms. Neufeld’s reputation in the eyes of a reasonable person. Dr. Nesbitt raised qualified privilege for the letters to the Ministry and to the doctor. That defence might have stood — except the Court found his motive was to win the custody dispute by any means. That motive amounted to malice, and malice defeated the privilege.
Ms. Neufeld was awarded $40,000 in general damages for defamation and breach of privacy. The Court treated the internet publications as particularly serious because of their reach and permanence — the mode and extent of publication, the judge said, was significant in assessing damages. Special costs were also awarded because of Dr. Nesbitt’s reprehensible conduct.
The Court of Appeal, in Nesbitt v. Neufeld, 2011 BCCA 529, upheld both the liability finding and the damages award. The malice finding, the Court of Appeal said, was supported by the record: Dr. Nesbitt’s desire to win at any cost defeated any claim to privilege.
The recent twist: defamation inside the family file
For a long time, defamation lawyers and family lawyers worked in separate lanes. A defamed spouse would file a separate Notice of Civil Claim, parallel to the family proceeding, with all the duplicated effort and cost that this involves.
The BC Supreme Court has now made clear that this is not always required.
In Akerberg v. Cheng, 2025 BCSC 382, and again in Akerberg v. Cheng, 2025 BCSC 2166, the Court declined to strike defamation and breach of privacy claims that Mr. Akerberg had pleaded inside his family law action. Rule 3-1(5) of the Supreme Court Family Rules permits a claim that would not, on its own, be the subject of a family law case to be brought within one — provided the main relief sought falls within the definition of a family law case, and the additional claim is related to or connected with that relief.
The reasoning is practical. Defamation between spouses can directly affect family law issues. Reputation impacts the ability to earn an income, which impacts spousal and child support. Online publications that damage a party’s business or professional standing can affect business valuation, damages, credibility, and the overall factual context of the family dispute. In many separations, the defamation and the family law dispute are simply two faces of the same fight.
The Akerberg decisions expressly relied on Nesbitt v. Neufeld and on Bradford v. Bradford, 2023 BCSC 877, as precedents for defamation claims proceeding alongside family litigation.
What this means in practice: a spouse who has been defamed during a separation does not necessarily need to launch a second lawsuit. The defamation claim can travel with the family file. That is a meaningful efficiency for the defamed spouse — and a meaningful warning to the spouse doing the defaming.
Practical guidance
After twenty-five years of acting on both sides of these disputes, a few hard rules:
If you are angry, stay off the internet. Every text, every email, every Facebook comment, every WhatsApp message becomes a record. The internet aggravates defamation damages because it is permanent, searchable, and far-reaching. The Court in Nesbitt treated online publication as a significant aggravating factor.
Talking to your child’s doctor or school is not automatically safe. Qualified privilege protects communications made for a legitimate purpose by people who share a reciprocal duty and interest. It does not protect communications driven by a desire to gain advantage in the custody fight. If a court can see that your motive was to win, privilege will not save you.
“Truth” is a high bar. Justification requires you to prove the substantial truth of the defamatory imputation. Not your honest belief in it. Not your interpretation of events. The objective truth, on a balance of probabilities, with admissible evidence. Many separating spouses underestimate how difficult this is once they are in the witness box.
If you are being defamed, preserve — do not respond. The temptation is to fight back online, point by point. Resist it. Screenshot. Save. Archive. Date and source everything — full URLs, timestamps, author handles. Bring it to counsel. Responding publicly compounds the harm and weakens the eventual case.
Consider the family file. Since Akerberg, there is clear support for pleading defamation and breach of privacy claims inside the family law action where the claims are sufficiently related to the family dispute. This may avoid the cost and duplication of a separate civil suit. Whether to plead defamation in the family file remains a strategic decision in each case.
Special costs are on the table. Nesbitt shows that reprehensible conduct in defaming a spouse can attract special costs, not merely ordinary costs. The financial exposure extends well beyond the damages award.
A final word
In every family law file I have run involving allegations of defamation, the defaming spouse said, at some point, “I was just telling the truth.” Sometimes they were. Often they were not. Almost always, they had not weighed the cost.
The core principles are clear. Defamation is actionable between spouses. Online publications make it worse. Privilege does not protect malice. And in suitable cases, the claim can be brought in the family file itself.
If you are facing defamatory conduct during your separation, or if you are worried about something you have said or posted, the time to get advice is now — not after the screenshots multiply.
About this article
This article provides general legal information current as of May 2026. It is not legal advice and does not create a solicitor-client relationship. Specific advice depends on the facts of your case. Please contact George Lee Law for confidential advice tailored to your circumstances.
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