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Posts from the ‘Privacy’ Category

Meghan Markle’s Prior Divorce – How it Affects Upcoming Royal Nuptials

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Meghan Markle’s Prior Divorce – How it Affects Upcoming Royal Nuptials

Few of you can claim to be unaware of the upcoming wedding between Prince Harry and the American actress, Meghan Markle.  But what far fewer of you will know, is that Meghan was previously married to a man named Trevor Engelson.  They divorced in 2013 after two years, citing “irreconcilable differences.”

Although that brief marriage and subsequent divorce are otherwise unremarkable – and while there is no legal impediment to the upcoming Royal nuptials – in this case it requires the input of the Church of England, which religious organization was chosen by the couple to officiate their vows.

The website for the Church of England advises that “In certain circumstances the Church of England accepts that a divorced person may marry again in church and this has been the case since 2002.”   As long as the betrothed couple have the legal capacity to get married in the first place, under the civil law of England a member of the clergy is entitled to officiate, but is advised to give greater pause when marrying those who have walked down the aisle before. Clergy are advised to make inquiries of the couple about how committed the couple are to each other, whether they intend to be faithful, and whether they intend for the marriage to be for life.

It seems to pose no real impediment in modern-day Britain.  In contrast, when Harry’s father, Prince Charles married the previously divorced Camilla Parker-Bowles in 2005, they were married in a civil ceremony, rather than in a church, because their extra-marital affair was adjudged to have contributed to the breakdown of their respective marriages.  (However, their marriage was later “blessed” by the church).

In Meghan and Harry’s case, the process will likely be simpler, and will require them to fill out a form, and to provide it to the officiating priest with proof that the Meghan’s divorce is “absolute”.  It may also require the couple to engage in multiple interviews with the priest before the required official consent is given by the Church.

And leaving aside the religious requirements, it has been noted that the Royal rules and protocol must have relaxed somewhat, since Kate Middleton and Harry’s brother, Prince William, lived together before getting married.

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 RussellAlexander.com

Thinking of Doing Some Cyber-Sleuthing? Think Again

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Thinking of Doing Some Cyber-Sleuthing? Think Again

I wrote a recent Blog about the admissibility of surreptitiously-recorded telephone conversations in Family law proceedings.  I have also written several times on how courts approach the admission of Facebook evidence.

Particularly in nasty divorce and custody disputes, it is likely that courts will have to grapple with these kinds of issues regularly, given how easy its become for spouses to try to secretly gather evidence against each other, using a Smartphone, keystroke logger, spyware, etc.

But for the average embattled spouse locked in bitter litigation, how effective is this as an evidence-gathering mechanism for use in Family court?

The answer:  Not very.

Under Canadian law, secretly-gathered computer data, emails, internet history, video, audio and similar evidence is generally not admissible in routine Family law hearings, except in unusual circumstances and only after a court has held a separate mini-hearing, called a voir dire, on the specific issue.  Overall, the odds are not very good that such evidence will be admitted.

Case in point:  In a called T. (T.) v. J.(T.) the court considered a situation where the husband had hacked into his wife’s private email, using the password she had allowed him to have when the marriage was in happier times.   The emails disclosed what was, in the court’s words, “an arguably disturbing exchange between [the wife] and her lawyer, which could be interpreted as evidencing some potential risk or threat to his safety.”  Still, the court found the husband’s email hacking was not only unjustified, it was a clear violation of the wife’s privacy rights.  The court also concluded that the email evidence irrelevant and inadmissible.

Similarly, in a decision in U. (A.J.) v. U. (G.S.) the court considered whether to admit evidence that the husband had collected through the use of spyware he had illegally installed on his former wife’s laptop.  The evidence showed the wife’s activities on internet chat rooms, and established that she had engaged in extra-marital sex.  The court examined the issue in the context of the couple’s dispute over custody and access issues, ultimately concluding that the affair and the online activity was out-of-character for the wife, and was not reflective of her ability to parent the children of the marriage.  The court added that it would be “a rare case” that illegally-obtained evidence should be admitted, and only after the trial judge holds a hearing to determine its admissibility.  The burden was always on the party seeking to enter such evidence to establish “a compelling reason to do so.”

For the full text of the decisions, see:

(A.J.) v. U. (G.S.)

(T.) v. J. (T.)

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 RussellAlexander.com

 

Who Should Get Access to a Dead Person’s Emails?

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Who Should Get Access to a Dead Person’s Emails?

As reported in several recent articles in U.S. media outlets, the U.S. Supreme Court has been asked to rule on an intriguing new legal issue, one that is becoming increasingly prevalent in this era of rampant technology:  Who should have access to the emails belonging to a person who has died?

The question arose in connection with the Yahoo! account used by a now-dead Massachusetts man named John Ajemian.   Four years prior to his 2006 death in a motorcycle accident at the age of 42, he had set up the Yahoo! account with his brother. He had not bothered to make a Will, so when he died there was no governing provision for how the Yahoo! account was to be dealt with.

His two siblings were initially unsuccessful in their application to a Probate and Family Court to grant them access to his account, pursuant to their authority as his surviving relatives. That court had accepted Yahoo!’s lack-of-consent-related arguments, based on the federal Stored Communications Act.

However, after a successful appeal to the state Appeal Court, the lower-court ruling was overturned.  While falling short of imposing a positive mandate for Yahoo! to release the man’s emails, the Appeal ruling at least contemplated the possibility that Yahoo! could do so with the family’s permission.   (The Appeal court also sent one issue back to the Probate and Family Court for a re-hearing, namely the question of whether Yahoo’s stated Terms of Service agreement constituted a valid reason for refusing access.  That outcome will hinge on contract law principles, and will require the court to look at the matter from the standpoint of whether such agreements are valid and enforceable.)

The matter has now been scheduled to be considered yet again, this time by way of an application for judicial review brought before the U.S. Supreme Court.  No date has yet been set for that hearing.

It will be interesting to see how that top Court comes down on the matter, especially knowing that the outcome is so directly and arguably referable to other, similar tech-related scenarios and predicaments.

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 RussellAlexander.com

 

Custody Battle Gone Very Wrong:  Mom’s Cellphone Tracker Shows How Misguided Dad Really Is

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Custody Battle Gone Very Wrong:  Mom’s Cellphone Tracker Shows How Misguided Dad Really Is

I have reported previously about a case called M.M.B. (V.) v. C.M.V., the background facts of which are not terribly unique:  After their split in 2013 the parents had agreed to a “parallel parenting” and equal-time arrangement for their three children.  The mother now claimed that in the time since, the father had been engaging in a concerted effort to alienate her from them.  She asked for sole custody and an order that the father undergo therapy.

What’s more noteworthy is the rather epic court ruling in their case, which spanned over 1200 paragraphs, where the court recounted a dizzying array of tactics by each of the parents; overwhelmingly, however, the ruling focused on the misconduct of the father, who the court repeatedly noted had viewed himself as being “in a war” with his former spouse and determined to “win” at all costs.

Among the many accusations of rather mind-boggling misconduct on his part, one of the more interesting ones involved him using an app installed on the mother’s own cell phone to “track” her location.  As the court explained the gist of the mother’s testimony:

During the last two years of the relationship prior to separation, her evidence is that the [father] became more volatile and threw things at or near her. The [mother] testified that he was obsessed with the idea that she was having an affair. Her evidence is that she had never had an affair during the marriage.

 She further testified that the [father] had a constant need to be “in control” and that he utilized a feature on her cell phone to be able to track her whereabouts. Two examples that she cited were, on one occasion when she attended at a lawyer’s office in July 2011, he telephoned her four times during her appointment with the lawyer, knowing exactly where she was at the time. The second example she gave happened in August 2011. They were in New York for a few days and she left early to return to school. While the [mother] was still in New York, she claims that he was able to track her whereabouts and knew that she had taken a different route home. She says that she did so in order to look at possible housing for her and the children. He accused her that she was travelling to a residence for purposes of having an affair.

 As further proof that he was tracking her whereabouts through her cell phone, she indicated that she, as a result of these situations, learned that there was a “track my phone” feature on her phone which she then disabled. Shortly thereafter, however, she testified that he insisted on having her cell phone for some unrelated purpose. When he returned it to her she noticed that that the tracker had been reconnected. …

 When asked about the allegation of tracking the [mother] on her cell phone, his explanation for his knowledge of her going to a lawyer is that their cleaning lady told him this in July 2011 when the [mother] was going to the lawyer.

 When asked about the feature of “find my phone” so that he could allegedly track her whereabouts from his phone, he has a very “plausible” explanation. He claims that because he was using his phone for Association work they jointly downloaded this app so that she would be able to find his phone in the event that he lost it.

 Regarding the knowledge that he had that the [mother] was on a different route on the way home from New York City, the [father] once again has a “plausible” explanation. His brother who is a real estate agent, by happenstance, was showing a house across the road from where the [mother] was driving. His brother took it upon himself to call the [father] to report that he had seen his vehicle, thinking that it was the [father] but of course it was the [mother].

 This court views each of these explanations with a great deal of cynicism.

That cynicism was borne from many other conflicting and incredible explanations by the father, including one piece of “smoking gun” evidence noted by the court several hundred paragraphs later:

In response to the [mother’s] concern that the [father] was tracking her and the children’s whereabouts, the [father’s] response is somewhat contradictory. On the one hand, he “denied this” and stated that he “doesn’t care where she goes”. On the other hand, on several occasions, he admitted to “wanting to locate the children and not her”, which he believes to be a safety issue. He said he ”was able to locate the children by their cell phone devices”.

 This was an admission by the [father] that the court finds is consistent with the evidence given by the [mother] at trial; that she knew that the [father] was tracking her movements through her cell phone. The court finds that this is inconsistent with the [father’s] “explanations” of how he knew the [mother’s] whereabouts on two separate occasions at about the time of the separation. He specifically denied under oath at trial that he was tracking her whereabouts through her cell phone. Undoubtedly, he had forgotten what he said during the assessment, or did not expect this court would take the time to read all of the exhibits.

Particularly as it relates to the father’s highly misguided win-at-all-costs focus, the M.M.B. (V.) v. C.M.V. decision is a virtual judicial textbook on “How Not to Behave” in the post-separation phase.  It could be interesting reading for those who can get through the 1,200-paragraph judgment.

For the full-text of the decision, see

M.M.B. (V.) v. C.M.V.

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 RussellAlexander.com

 

 

Are Surreptitious Recordings Admissible in Family Court?

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Are Surreptitious Recordings Admissible in Family Court?

A recent Alberta case called St. Croix. v. St. Croix gave the court an opportunity to review the Canadian law on whether surreptitious telephone recordings could be admitted in Family court.

The background facts that sparked this review featured a mother who had asked the court to admit her evidence of recorded telephone conversations between her and the father of a child they had together.  They were embroiled in a dispute over custody and parenting issues, and she had recorded some of their conversations using her smartphone.  She alleged that in those recordings he had uttered threats to kill her (including a vow to “rip her head off” if she ever tried to take their child from him).

On a motion as to the recording’s admissibility, the court noted that it had not been provided with a copy of the recording, and was merely advised by the mother that it contained a threat of physical violence, and that it was relevant to the broader issues before the court.  The parents disagreed on how relevant it might be.

This scenario prompted the court to review the general law on whether, and in what circumstances, surreptitious recordings are admissible in Family law matters. Here are the key points:

  • Courts generally view surreptitiously-recorded telephone conversations with repugnance.[1]
  • However, short of certain specific privacy expectations, there are few if any restrictions on the admissibility of surreptitious recording of conversations or events. They are generally not prohibited or illegal.[2]
  • Rather than accept or reject them outright, courts will consider what the recordings themselves disclose, and weigh how probative they are, and then assess that against any prejudicial effect. [3]
  • Under the common law (which includes Family Law), it does not generally matter how the evidence is obtained and as long as the other person in the recording knows, prior to the hearing date, that the recordings exist and are being relied on, they can amount to real evidence of conversations or events.[4]
  • However, those restrictions do exist on various facts, and the cases go both ways.

In short:  There’s no clear yes-or-no answer, since it depends on the facts.[5]  

Returning to St. Croix v. St. Croix, the mother sought to have the recordings admitted as evidence on the basis that they were relevant to determining the child’s best interests. But the court pointed out that this might actually heighten the acrimony between her and the father, and reward her for being the better “documentarian” in their interactions.  More to the point, this was likely to prolong their litigation and increase expenses, since it would catapult both of them toward providing the court with longer and more numerous affidavits and court exhibits.

In the end, the court in St. Croix decided not to allow the telephone recording, and added that it would be a rare case where this kind of evidence should be admitted, and only after the court holds a voir dire to determine whether it is admissible in all the circumstances.[6]

For the full text of the cited decisions, see:

St. Croix v St. Croix

Mazur v. Corr

Scarlett v. Farrell

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 RussellAlexander.com

 

[1] Scarlett v. Farell. 2014 ONCJ 517.

[2] Mazur v. Corr, 2004 ABQB 752.

[3] Scarlett v. Farell. 2014 ONCJ 517.

[4] Mazur v. Corr, 2004 ABQB 752.

[5] And for those reading, it’s important to seek the advice of an experienced Family lawyer, before trying to use recorded phone conversations in your litigation.

[6]It should be noted, however, that additional procedural steps were still pending, whereby the trial judge would determine whether that decision was final.

Saving the Golden Goose: Part III – Privacy, Protection, and Planning

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Saving the Golden Goose: Part III – Privacy, Protection, and Planning

This blog builds upon our previous blogs Saving the Golden Goose: Part I and Part II to discuss the importance of privacy, protection, and planning in managing the effects of separation and divorce on family businesses. One illustration of this arose in a case whereby both spouses owned shares in the family company. As an additional wrinkle, a third business partner was involved and actively expressed concerns about the effect of the separation and divorce on the business.

One spouse actively managed the finances of the business, and the other was less involved. This created an unbalanced feeling for the second spouse, who felt that they were open to being taken advantage of financially. The spouse in active management of the business was incredibly concerned about market changes and the viability of the business going forward into the future. This vulnerability split into discussions around how the business should be properly valued.

The spouses had several adult children who had been supported by the family business in various ways throughout their teenage years and adulthood, either through part time jobs or full time employment. These children had very vocal views on how the couple’s separation should proceed. The children also felt that the family cottage should remain in the possession of the spouse who was in active management of the family business, as it was a retirement plan.

In this matter, a full team approach was utilized to create a creative solution which met the spouse’s needs amidst the “background noise” of the children and the business partner. The family professional was able to mitigate any backlash from the children expressing their feelings about the family business and the cottage, and the financial professionals were able to ensure that the non-managing spouse felt competent enough to actively participate in the financial negotiations.

In order to ensure that the family business was preserved, several options were suggested by the team to the spouses:

Shares from non-managing spouse be transferred to managing spouse; other family property transferred to non-managing spouse

  • Shares from non-managing spouse be transferred as a gift to the children
  • Non-managing spouse retains cottage; managing spouse leases family cottage back and covers operating and capital costs with option of re-purchasing in the future
  • Non-managing spouse retains the shares for a period of five years during which the managing spouse acts as the voting proxy, after which time the managing spouse has the option of buying back the shares at the current value

Associated issues such as the capital gains liability of each scenario, as well as the valuation dates for transferred property were also taken into account. Notably, these options would not be available in the traditional court context. Perhaps most importantly, the spouses would not have had the “luxury” of being supported by an interdisciplinary team and provided time to process and decide which option made the most sense to themselves, their family, and their business.

The above case examples illustrate the ability of collaborative family law to shape a resolution with the best interests of the family business at the core. The collaborative process emphasizes privacy, protection, and planning. By keeping the matter outside of the courtroom, families can maximize their privacy with respect to the highly personal matter of restructuring their family and business.  The collaborative process offers a respectful alternative to the court system for those wishing to ensure that their legacy remains intact for generations to come through estate and succession planning for the business. The business does not need to be destroyed by family restructuring. Minimizing the financial and emotional impact of a separation and divorce on both the family and their business is a tall order, but it can be done with the support of an interdisciplinary team who is specially trained to identify creative solutions with the goal of resolution. This process allows spouses to take back control of your family’s future from impartial third party adjudicators.  Divorce and separation may represent both an ending and a beginning. Collaborative practice helps spouses anticipate and include their need to move forward, and makes the future of their business a key priority.

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 RussellAlexander.com

Part I

Part II

 

Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

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Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

In a Supreme Court of Canada ruling in a criminal case called R. v. Marakah, which was handed down just this past week, the nation’s top Court framed the essential questions in the opening lines:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?

The accused, Nour Marakah, had been charged and convicted of trafficking in handguns.  Among the evidence used against him were certain incriminating text messages that he had sent to an accomplice’s iPhone.  The messages on his own phone (from where those messages to the accomplice were sent) had already been ruled inadmissible, since their use was found to have breached his Charter right to be protected against unreasonable search and seizure.

The Supreme Court of Canada ruled that the text messages that had been intercepted from the accomplice’s phone were private in the circumstances, and also inadmissible on the same Charter-based grounds.

The Court quickly added that outcome was not automatic: different facts may have led to a different result.  Among other things, the matter hinged on whether Marakah had a reasonable expectation that the texts would remain private.

From a general standpoint, the Court discussed the relevant legal analysis to be applied in these cases.  This involved evaluating the “totality of the circumstances” including the elements of whether the sender has control over the messages once they are sent.  Someone who sends texts messages has meaningful control over what they sent, and how and to whom they disclose the information.  For the purposes of the Charter’s s. 8 protections against unreasonable search and seizure, that control is not lost merely because another individual possesses or can access it.  In other words, even though the sender does not have exclusive control over his or her personal information – only shared control – that does not preclude him or her from reasonably expecting that the information will not be subject to state scrutiny.

Returning to Marakah’s specific case, he had an objectively reasonable expectation of privacy of the text messages on the iPhone of his accomplice. He fully expected their conversation to be private, and had repeatedly asked the accomplice to delete the incriminating messages from his iPhone. The “place” of the police search (i.e. the accomplice’s iPhone) was a private electronic space accessible the accomplice, so this factor also heightened Marakah’s legitimate privacy expectations.

In entertaining, but ultimately rejecting, the policy concerns around recognizing the privacy of text messages in some circumstances, the Court added:

There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter.

The Court found that there had been a breach of Marakah’s Charter rights in this case, and that admitting the text messages from the accomplice’s iPhone as evidence would bring the administration of justice into disrepute.  Without those texts, he would have been acquitted; to allow the conviction to stand would be a miscarriage of justice.

Although this Supreme Court ruling germinated from a criminal case with Charter implications, it may have eventual repercussions in the civil realm, including Family Law trials.

What are your thoughts on this ruling?  Should text messages be considered private at all times?

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 RussellAlexander.com

 

 

[1] 2017 SCC 59 (CanLII).

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (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 RussellAlexander.com