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Posts tagged ‘Rules of Civil Procedure’

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

Tying Up Land During Family Law Disputes

Tying Up Land During Family Law Disputes

In situations of divorce, the spouses strive after separation to unwind their financial (and emotional) affairs as quickly as possible. The process usually takes a while, and there are certain legal procedures and processes that facilitate the orderly resolution of issues as the matter progresses to trial. Some of these involve mechanisms to give the public notice of the imminent litigation, or to effect a temporary alteration or “suspension” of the rights of spouses or other individuals, pending the outcome.

A certificate of pending litigation (or lis pendens in Latin) is one of these mechanisms.

What is it? A certificate of pending litigation (or “CPL”) serves as a notice to the public that the interests pertaining to a certain piece of land (usually the matrimonial home) are currently subject to a court dispute. It is a temporary measure, is registered against the land, and is discharged once the litigation is resolved.

How is it obtained? Essentially, the party who wishes to have the benefit of a certificate of pending litigation (“CPL”) must show that he or she has a “reasonable claim to an interest in the land,” a fact that must be established on a balance of probabilities.

The party seeking the CPL must also satisfy certain legislated requirements (which are set out in the Courts of Justice Act and the Ontario Rules of Civil Procedure), as follows:

• to be effective, the CPL must be issued by a registrar of the court, pursuant to a court order;

• once the CPL has been obtained, it must be served on all parties against whom an interest in land is claimed in the proceeding; and

• it must be properly registered on title of the Ontario land in question, either under in Land Titles or Registry (as the case may be).

In addition to these requirements, the Courts of Justice Act also safeguards against the abuse of CPLs, by providing that any party who registers one without having the requisite reasonable legal claim to back it up will be liable for any damages that result. This is accomplished through the use of an “undertaking as to damages”: the person requesting the CPL must abide by any court-ordered damage award in the event that the registration of the CPL against the property unjustly caused damages to the party who owns the land, or to certain other persons.

Incidentally, there is no requirement that the person applying for the CPL has to give notice in advance of doing so (i.e. he or she may bring a “motion without notice” to the affected parties).
What does it do? Technically speaking, a registered certificate of pending litigation does not prevent the owner from dealing with or selling the land; however, most buyers will avoid transactions that are fettered in this manner.

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.