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: