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Posts from the ‘Spousal Spying’ Category

Thinking of Doing Some Cyber-Sleuthing? Think Again

Image result for sleuth

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

 

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

Image result for tracking

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

 

 

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

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

Should Court Stop Dad From Posting Pictures of Child on Facebook?

FB posting

Should Court Stop Dad From Posting Pictures of Child on Facebook?

In a recent Ontario decision called Rego v. Santos, the court had to grapple with a very modern-day issue: whether to prohibit a father from posting pictures of his child on the internet, in what was essentially a social media “publication ban”.

The parents of the now-four-year old child had never married; they met at work and by all accounts had an intermittent relationship. The mother claimed they were sexually intimate on only one occasion, and even denied the father’s paternity until she was reluctantly conceded otherwise based on paternity test results. The father, in contrast, claimed they had good rapport until a minor incident occurred which changed the mother’s disposition toward him. She thereafter made it clear that she wanted the father out of her life and away from the child, and eventually obtained a court order for sole custody, with specified access to the father. But when the father tried to exercise that access, he was refused and actively blocked in his attempts by the mother.

Against this background, the father applied successfully to have custody of the child himself, pointing to the mother’s obstructionist tactics respecting access, and her unwillingness to foster a relationship between the father and the child. The court granted the father’s application for a custody changed, and with access to the mother.

In the context of granting this order, the court entertained a complaint by the mother to the effect that the father had shown poor judgment in connection with this internet use; specifically that he had posted comments about and pictures of the child on Facebook, despite an earlier court order to the contrary. One of the posts included a comment by the father as follows:

To [my daughter] – my “angel”, 2 years ago I was the first to hold you, I was the first one to feed you. Today you turned 2 and although I am unable to see you and be there for you. One day you will ask why, and when that day comes, I will simply tell you to ask your mother. Just know this, I love you … Happy Birthday.

The mother objected on the basis that such postings were actually intended by the father to draw attention to himself, to portray the two parents and child as an intact family, and to garner sympathy for his family situation from other social media users.

In refusing to grant the mother’s sought-after publication ban, the court wrote:

The internet is a relatively new communication forum that does not have established rules of play. Users are on their own to show respect, accuracy and good grace in their publications. [The father] in the past demonstrated his great pride in his daughter that lead to postings of the child’s pictures. I think he could have been a little more tactful in his posted messages, but as just stated, there is a wide range of comments that can be made with impunity. Some people are concerned that children can be located by persons who wish to do harm. Care must be taken to avoid descriptive or locational information in pictures or messages.

[The mother] is a very private person, perhaps obsessively so. As she testified, only her closest friends even know about [the father] as [the child’s] father. The solution is for [the father] to be circumspect in his posted messages, and for [the mother] to be more tolerant of internet communication. I see no reason why [the father] should be interdicted from, or even regulated in his use of internet postings. The only harm I can see from postings would be an intrusion into [the mother’s] unreasonable demand for all-encompassing privacy. If he were allowed to do any postings even under court restricted conditions, my concern is that [the mother] would find fault, and require court attendances to allege contempt.

Another facet of [the mother’s] concern is that persons other than [the father] may make postings. The [mother] may believe the [father] is encouraging others to do so, but that is not probable. In any event, it is not possible for this court to require [the father] to control who else posts messages on the internet.

The court accordingly refused to grant an order restricting the father from posting pictures of family or comments on the internet, and vacated the earlier court order that had purported to prevent him from doing so.

What are your thoughts? Should courts issue a Facebook “publication ban” in high-conflict family law cases? Or in all cases?

For the full text of the decision, see:

Rego v. Santos, [2014] O.J. No. 3341, 2014 ONCJ 330

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 our main site.