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Thinking of Snooping on Spouse’s Email? Read This First

snooping

Thinking of Snooping on Spouse’s Email? Read This First

If you are involved in a divorce or separation, you may still have access to your spouse’s personal e-mails, and it may be tempting to read them. But that is precisely what got a husband in trouble with the court in a case called Golchoobian v. Vaghei.

The former couple, who were now involved in divorce proceedings, still owned a clinic together and both continued to work there pending full resolution of their legal issues. The husband was caught on the clinic’s security cameras using the reception-area computer to access his wife’s personal e-mail. He was also heard in an audio recording telling someone else certain information about the wife that he could only have known by looking at her e-mails.

At least one of those e-mails had been written by the wife to her lawyer, and this gave rise to a legal issue about whether by accessing them the husband had deliberately violated her solicitor-client privilege. In other words, the wife had justifiable concerns that the husband had gained access to sensitive and private information contained in hundreds of emails to and from her lawyer, which would reveal her litigation strategy in the divorce case against him.

As a threshold determination, the court held that the e-mail in question involved the wife asking for (and the lawyer giving) legal advice that was intended to be confidential. It was therefore subject to solicitor-client privilege, which is a fundamental aspect of the Canadian legal system designed to preserve the confidentiality of information passing between a client and his or her lawyer.

Next, the court did not hesitate to find that the husband deliberately accessed his wife’s personal e-mails and that his explanation to the contrary (that he had come across them while looking at business e-mails for the clinic) were simply not truthful. This was a deliberate breach of the wife’s solicitor-client privilege on the husband’s part, coupled with lies to try to cover up his conduct, and deserved significant court-imposed sanctions.

Although the court stopped short of imposing a hefty fine or striking out the husband’s court pleadings altogether, it ordered him to pay the wife’s full costs of the motion she was forced to bring because of his misconduct. The court also ordered the husband to provide an Affidavit confirming what documents he obtained and what he had done with them, and required him to give an undertaking to the court that he will not repeat the offensive behaviour.

Finally, the court also warned the husband that:

• He must be vigilant to observe the wife’s right to solicitor-client privilege;

• He must comply with the Family Law Rules, the Rules of Civil Procedure and any orders or judgments;

• He will be exposed to serious consequences should he be found to violate those Rules, judgments or orders;

• Future transgressions would attract more serious consequences, including striking his pleadings;

• The consequence of his conduct would “remain a stigma” throughout the remainder of the proceedings.

For the full text of the decision, see:

Golchoobian v. Vaghei, 2015 ONSC 1840 (CanLII)

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