We often hear clients say things like the following….
“Last night, I searched through Anne’s emails on her computer, and this is what I found…”
“I found these letters between Frank and his lawyer…”
“I installed spyware on Sue’s computer, and I’ve been recording her phone calls to Holly and Aiden, and you should hear them…”
Our lawyer Toni Nieuwhof offers some advice about whether you should be spying on your spouse. Here is Toni’s blog:
In today’s electronic age, when a marriage deteriorates into battle, these are typical things people say to their family lawyers. Most families are surrounded by various electronic devices with passwords that are shared or easily guessed. There is a strong temptation to take matters into one’s hands by secretly collecting evidence. Most are not aware that there could be legal consequences associated with accessing private information or conversations. A recent case known as Jones v. Tsige provides one example of the possible consequences of the invasion of privacy.
In this case, the ex-wife examined the banking records of the current partner of her ex-husband, as both of the women worked at the same bank. The banking records were accessed 174 times by Ms. Tsige, without Ms. Jones’ knowledge or consent. The reason Ms. Tsige gave for examining the bank records was apparently to find out whether support payments were being made by the ex-husband to Ms. Jones. Although there was no money lost and none of the banking records were published, copied or stolen, the Ontario Court of Appeal awarded damages to Ms. Jones simply because her privacy had been wrongly invaded. This ruling was not based on a breach of privacy legislation, but simply on the common law expectation of privacy under a new heading.
In order to sue a spouse for this new privacy invasion known at law as “intrusion upon seclusion”, the following must be proven by the one making the claim:
That the other person’s action was intentional, which may include recklessness;
That the other person invaded private affairs or concerns without lawful justification; and
That a reasonable person would regard the invasion as highly offensive, causing distress, humiliation or anguish.
The Court of Appeal wrote that damages for this type of privacy invasion, without proof of financial harm to the one whose privacy was invaded, could justify an award of $20,000.
Judges are increasingly faced with information collected from social media, text and email messages, and so on, but are also called upon to make rulings where a party claims their privacy was invaded or a criminal offence occurred in collecting the evidence. While it is okay to collect account statements or financial records that one has access to, the following activities may put you at risk:
– Snooping through the private letters or computer records of your spouse;
– Accessing or copying correspondence between your spouse and his or her lawyer;
– Installing spyware or secretly recording conversations (these are criminal offences).
Check with your lawyer first if you have any questions about collecting evidence for your family law matter. Taking matters into your own hands may make your separation messier than you expected.
Toni Nieuwhof has a passion for family law and helping her clients navigate through the challenges of a separation or divorce.
Toni’s attention to detail, articulate and persuasive writing style and sharp wit make Toni an excellent advocate.
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