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Husband Does Some Sleuthing on Wife’s Facebook Apps – Is the Uncovered Evidence Admissible?

FB spy

Husband Does Some Sleuthing on Wife’s Facebook Apps – Is the Uncovered Evidence Admissible?

We wrote earlier about the decision in Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984, which considered the issue of whether a support-paying husband should be indirectly footing the bill for his ex-wife’s financial irresponsibility post-separation.

But another aspect of that case is equally interesting: As part of the evidence that was put before the court on the question of how much spousal support he should pay, the husband had managed to do some sleuthing. On the morning of the trial, he had input some credit card information disclosed by the wife as part of their family litigation, to uncover various charges she had incurred on Facebook for an on-line gaming App known as “Slotboom”. He brandished this late-breaking evidence as a sort of “smoking gun”, to suggest to the court that the wife had a gambling problem. As the court explained:

A number of entries on [the wife’s] Visa statement denoted “Facebook” with invoice numbers beside them. On the morning of the commencement of trial, [the husband] advised that he had entered these invoice codes on Facebook, along with the last four digits of [the wife’s] credit card number (which appears at the top of all the disclosed statements). Facebook then returned details of the purchase which, in this case, included the name of the game for which the purchases were incurred, which was “Slotboom.” [The wife’s lawyer] objected to the admission of this evidence on a few grounds. First, she objected that this was too late, being the beginning of trial. …

The court adjourned briefly to allow the wife’s lawyer to review the documents and make further submissions; eventually the lawyer objected on the basis that the invoices should not be admitted because they amounted to “unauthorized use of [the wife’s] private credit card information and thus are unwarranted violations of her privacy interests.”

(And by way of explanation, the wife initially claimed that the Facebook invoices were for “games that were helpful for memory” at an average cost of $5 per day. However, when pressed, she conceded that they included charges for a game called “Slotboom” which featured an online slot machine, but maintained that it was skill-based. She later admitted to having done some online gaming in the past, but had not done so for the past year. Unfortunately, this testimony was undermined and proven untrue by the Facebook invoices, which for example showed 12 separate transaction in a single 5-hour period, totalling $435.)

The lawyers for each side could not come up with any precedent law on the issue of whether these invoices should be admitted as evidence, but after some reflection the court found that they should.

In this particular case, the information in the invoices was relevant to the family law matter – and spousal support in particular – because the husband had alleged that the wife had been dissipating her assets, and that a gambling addiction is at least part of that problem. (And this allegation was not a surprise to the wife, since the husband had made these claims right from the beginning). The documents would have been something the wife was required to produce in the course of the family litigation any case, had she been asked to by the court. The husband had uncovered the Facebook invoices using only the credit card information that had been properly disclosed to him; moreover there was no allegation that he had done anything with either the credit card number nor the Facebook invoices beyond what was directly relevant to the litigation.

Finally, the court noted that in the common law (as opposed to criminal law) there is no general power by the court to exclude evidence on the ground that it was wrongfully obtained. To the contrary, there is a general rule of inclusion, i.e. that the trier-of-fact should have the benefit of all relevant evidence, no matter how it was obtained. Nor does the Charter have any application between these kinds of disputes between private individuals.

The Facebook evidence was therefore ruled admissible.

Do you think this was the right outcome? What are your thoughts?

For the full text of the decision, see:

Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com