Focus: Spouses warned against spying on former partners

While the use of social media in family law cases is common, questions linger over a spouse’s access to other digital information relating to a former partner as privacy and evidentiary considerations make snooping on someone’s online world a tricky and potentially costly exercise.

William Abbott, a partner at MacDonald & Partners LLP, says rulings in the privacy law sphere are finding ready acceptance in the family law arena. “As we get more and more into the electronic age, we will see an expansion of the Jones v. Tsige doctrine of intrusion upon seclusion. It will be far easier to install tracking and recording devices, but that infringes on people’s privacy and there is very low benefit.”

Kenneth Fishman, an associate at Basman Smith LLP in Toronto, agrees. “Spying is never a good idea. Everyone is entitled to an expectation of privacy. Certain things are sacred like a diary or e-mails. It’s not common to break into e-mails, but as society becomes more technologically advanced we are going to see more and more of these cases.”

He believes that if someone has obtained information by hacking, there are clear evidentiary issues. “With bank accounts, you could get in through a password given to you during the marriage that just hasn’t been changed, but even if you know someone’s password, it is their private domain. If one spouse broke into banking records and found information that was not disclosed, on the one hand, the one who didn’t divulge would have a problem but the first spouse would also have a problem.”

Other practices that fall afoul of criminal and privacy rules are placing GPS tracking devices on someone’s car, secret recordings, the installation of spyware, and intercepting e-mails involving opposing counsel. “We say, and all lawyers should say, we can’t look at that,” says Abbott. “I’m not sure what benefit there is to spying. I’m not sure what information you are going to get that you couldn’t get by other means.”

He believes suspicion drives a great deal of intrusive behaviour that’s ultimately not beneficial to the case. “A common reason is to see if the person has a new partner, but that is irrelevant to most aspects of family law. We have no-fault divorce. The exception is where you fear there may be harm to the children, but you can get that information by having the children interviewed by an assessor or by the Office of the Children’s Lawyer. The other reason people spy is to see if someone is working. Unless they are working for cash, in which case we would get a private investigator to conduct surveillance, the easier way is to get a credit bureau report, get bank statements or interview the spouse. If you look at the cost in a cost-benefit analysis, there are far more cost-efficient ways of doing it.”

Fishman believes there are sufficient tools and safeguards within the family law rules to obtain disclosure.
“People are no more effective at hiding things than they were 10 years ago. The Internet did not open up ways of hiding things. People are still working with the same banks. If they are funnelling money overseas, that’s always hard to figure out but you don’t need to resort to spying. You have the ability to go to court and get a very broad order. You can even get an order for third-party disclosure and go straight to the bank.”

There are options, says Abbott. “In the family law context, one thing that parties don’t use enough is Rule 19(1). If a party asks for an affidavit of documents, then it has to be produced within 10 days. If you suspect that they are up to no good, as soon as the pleadings have closed, always ask for it. They have to disclose if they are intending to rely on surveillance. They have to produce bank statements. If bank accounts are not disclosed and you subsequently find others, because it’s a sworn document, their credibility is shot. If you suspect that information is missing, you can file a Form 20 request for information or you can run a credit report. It is cheaper and more accurate than surveillance and it is admissible.”

Spying can also place a party at risk. “There is developing case law that if you do spy, the other party could sue you,” says Fishman.

He warns, however, that it doesn’t mean the other person has suddenly hit the jackpot. “If you find your spouse has been spying, you won’t get rich. The court is limiting the amount of damage so that it is not too crushing.”

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