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Introduction to Spousal Spying and the Law in Ontario

Tempted to Snoop? Beware of a New Canadian Cause of Action

Those embroiled in matrimonial disputes and litigation can attest to the fact that emotions run high: acrimony can breed one-upmanship, and ex-spouses may be consider resorting to less-than-ethical means of obtaining information on their former partners to be used in the dispute-resolution process.

But however tempting it may be, it’s important for an ex-spouse to resist the urge to engage in spying on the other, or to surreptitiously gather information in an unscrupulous manner. A recent Ontario Court of Appeal decision has essentially recognized a new cause of action for certain kinds of intrusions into individual privacy.

In this case, called Jones v. Tsige, the plantiff Sandra sued her co-worker Winnie, with whom she worked at a Toronto branch of the Bank of Montreal. Sandra and her ex-husband were embroiled in a dispute over money that he owed her for child support. As it happens, Winnie had started dating Sandra’s ex-husband.

In an abuse of her position with the bank, and contrary to the bank’s policies, Winnie exploited the access she had to Jones’ personal bank account information, which included transaction details, date of birth, marital status and address. Indeed, she looked into Jones’ banking records approximately 174 times in a four-year period, apparently (she said) for the purpose of checking to see whether Sandra was receiving child support payments from her ex-husband.

Sandra became suspicious that her account was being monitored, and complained to the bank. Upon being confronted, Winnie confessed. She was suspended for a week without pay, and was denied her annual bonus.
Sandra sued Winnie for invasion of privacy, claiming $90,000 in damages.

After considering these facts, together with the history of privacy-related causes of action in Canadian tort law, the Court of Appeal recognized a new cause of action called “intrusion into seclusion”, which is essentially a sub-category of invasion of privacy.

In order to establish a successful claim based in “intrusion into seclusion” a person must prove:

1. An unauthorized intrusion;

2. The intrusion was highly offensive to a reasonable person;

3. The matter intruded upon was private; and

4. The Intrusion caused anguish and suffering.

The Court noted that currently all Canadians are entitled to the benefit of privacy by way of the various protections afforded them through numerous sources which include legislation and case law. However, this does not mean that the categories of new potential claims for breach of privacy were closed. Indeed – and despite the fact that there has previously been no free-standing Canadian tort of “invasion of privacy” – the law has recognized similar claims for “nuisance” and “trespass”.

Given the recognition of this new cause of legal action, what’s the bottom line for family litigants? It’s simply this: Think twice before you snoop!

 

Here’s a snapshot of what you need to know:

Can you Spy on your Spouse?

  • As with many things in family law the answer is – it depends
  • Many clients do choose to spy on their spouse
  • It is dangerous to do so without getting proper legal advice

Consequences of Spying on your Spouse

  • You could face a lawsuit in civil court for “intrusion upon seclusion”
  • You could face criminal charges
  • Any evidence you obtain could be thrown out by the court

Intrusion Upon Seclusion Civil Law Suit

  • You may face a civil law suit If your spying was intentional or If your spying was not intentional but you were acting in a reckless way that you should have known would result in discovering private information
  • You must have without justification snooped into your spouse’s private affairs and concerns
  • A normal person looking at what you have done would consider your actions highly offensive and to have caused distress, humiliation or anguish

Penalty for Intrusion Upon Seclusion

  • You may be forced to make a payment to your spouse for emotional or financial damages
  • Currently these types of awards have been limited to a maximum of $20,000
  • The court will decide the amount awarded based on the effect of the spying on your spouse’s life

How does the court determine the maximum penalty for Intrusion Upon Seclusion

  • The court will consider the impact of your spying on your spouse’s health, business, social or financial position
  • It may also consider the distress caused to your spouse, and also the annoyance or embarrassment suffered by the spouse as a result of your actions
  • It may also include the conduct of both parties before and after the spying and the current status of the relationship between the parties

Criminal Charges for Spying on your Spouse

  • When you install spyware on a computer or other electronic device for the purpose of spying on your spouse’s private information you may face criminal charges
  • When you secretly record conversations that your spouse is involved in but you are not a party too you may face criminal charges
  • Note that it is legal to secretly record conversations if you are a participant in that conversation

When you can Spy on your Spouse

  • While it is never guaranteed that you are allowed to spy on your spouse, there are some situations in which it seems to generally be acceptable
  • You may normally make copies of account statements or other financial records that you would have access to in your regular life
  • You may make copies of account statements or financial statements that you find lying around your home or any other place which you normally go
  • You may secretly record a conversation that you are a participant in

Spousal Email and Social Media Accounts

  • Generally if your spouse has a private email which you did not have access to during your relationship or which you have been asked to no longer access then you should avoid accessing that account
  • You should avoid accessing private social media accounts to which you do not normally have access or you have been asked not to access
  • You should avoid reading letters which are addressed only to your spouse, especially if they are clearly of a private or confidential nature
  • Even if you were previously aware of the password to these types of accounts you should avoid accessing them after a separation especially if you did not normally access them during the relationship

Rules of Thumb for Spying:

  • Consider whether you would have access to this information in your normal day to day routine
  • Did you have to take any additional steps to discover this information such as opening a bag for which you have no other reason to access
  • Did you have to enter a password to access information which you have no other reason to access

When you Catch your Spouse Spying on You

  • If they have committed a criminal offence and you would like to have them charged criminally you can call the police
  • Keep in mind that once you have charged your spouse criminally you will NOT be able to control whether the prosecution drops the charges – criminal charges will have a significant impact on your spouse’s life and you may regret any actions taken in anger
  • If your spouse has embarrassed you or caused you significant mental anguish you may wish to make a civil claim – you should consult a lawyer to determine the possible value of your claim and whether it is worth the legal fees to pursue