With so much private information stored online and on electronic devices, concerns around protecting such information are ever-present, including for family law litigation. A party can be tempted to access highly private information or even privileged communications with the aim of gaining an advantage in family law proceedings. In such circumstances, the party may seek to admit the information as evidence. Courts can decide whether improperly intercepted information should be admitted, but also warn about the mistrust and conflict fuelled by snooping.

Your Private Information May Be Used as Evidence

Much of our personal information is stored on social media, emails, and computers, and this information can be relevant to issues that arise in family litigation. Information can also be on shared devices, or one spouse may remember passwords the other used. Consequently, it can be tempting for parties to want to access that information for use in legal proceedings to advance their case.

The case of Eizenshtein v. Eizenshtein contemplated the challenges surrounding privacy, digital communications, and the maintenance of solicitor-client privilege. Justice Wildman remarked that extensive personal information is communicated electronically and often with minimal security protection. Information can be accessed from computers remotely, with electronic fraud and computer “hacking” posing persistent challenges. The court noted that a particular challenge in family law is private information that is stored stored on a computer, with a right of access that is shared by other members of a person’s household who use the same device.

The case also examined the policy considerations for courts to be skeptical of the admission of improperly obtained evidence, which extended to a need to respect family relationships and other relationships of trust. As the judge put it, “to allow the admission of evidence, even if disclosed to others with whom a person has a close business, family or intimate relationship, would encourage troubling scenarios.” A similar conclusion was arrived at in Hameed v. Hameed, which dealt with the surreptitious recording of telephone calls. In that case, the court held that such behaviour should be discouraged given the conflict and mistrust already present in much of family law.

Expectations of Privacy for Information Stored on Computers

While courts warn about mistrust in family law cases, they also must balance admitting evidence while protecting privacy expectations. This has led courts to consider the extent of privacy that family parties can expect over their computers and email communications.

No Expectation of Privacy for Company Emails Accessible to Spouse

In Greenhalgh v. Verwey, the respondent sought to admit as evidence two emails that were reportedly sent by the applicant. The emails were downloaded from the hard drive of a company computer. The parties’ date of separation was a central issue in the case as the parties disagreed on the proper date of separation.

In the emails, the applicant discussed the status of his relationship and referenced his “wife”, highlighting his state of mind at a time when it was debatable whether the parties were separated. The admissibility of the emails was in question, with the respondent opposing the admission of the emails on the grounds that they were improperly obtained and that he had a reasonable expectation of privacy in the emails.

The judge noted the 2005 decision of Autosurvey Inc. v. Prevost where Justice Quigley emphasized the parties’ rights to be “free and secure from encroachment upon their reasonable expectations of confidentiality and privacy.” However, in these circumstances, there was a lessened expectation of privacy. The computer containing the emails was stored on the company premises. As office administrator, the respondent’s position entitled her the right to access the contents of the computer. Consequently, the applicant could not expect a high level of privacy of data stored on a company computer which the respondent had access to. The Court also noted that the respondent did not surreptitiously obtain the emails, but searched the hard drive of an abandoned company computer that she had a right to access. As the emails were relevant to the issues and there was only minimal prejudice from admitting them, the emails could be used as evidence.

Husband Has Minimal Expectation of Privacy for Documents on Wife’s Computer

Gonzalez v. Gonzalez was a case from the British Columbia courts which considered the extent of privacy a spouse can expect from a shared computer during family litigation. The wife had retrieved documents relating to the husband’s business interests and income. The husband claimed he had a reasonable expectation of privacy in the documents on the computer and said it should have been obvious that the documents were private and confidential, and that the court should not countenance the manner in which the spouse obtained them.

However, the judge determined that the computer belonged to the wife, though it was used by other family members (including the husband). Additionally, the computer was not password protected, with the documents left readily accessible. The court found that, in those circumstances, any expectation of privacy was slight.

Court denounces surrupticious collection of evidence

Where a party improperly accesses private information, there are often competing views whether the information should be allowed as evidence before courts. That was the case in Dixon v. Lindsay. The respondent came to realize that the applicant had accessed his email account and viewed over 1200 emails that were privileged communications with his family law counsel, as well as communications with his criminal law clients. The applicant had also accessed 430 emails covered by other privacy rights.

The respondent argued that he did not consent to the applicant accessing his email, and that he did not waive privilege over his correspondence or provide copies to the applicant. Over the course of the litigation, the applicant admitted that she deliberately accessed the emails after their separation. She reviewed and forwarded the emails and stored copies with the intention of using some of them in connection with the family law case. However, she did not acknowledge any wrongful conduct. Instead, she justified her actions as promoting truth and justice, though the judge viewed this as an “ill-disguised attempt to retaliate”.

Admitting improperly obtained evidence would reward spouse’s “egregious” conduct

The court found the applicant never received consent to access the communications. Instead, she acted surreptitiously and displayed egregious conduct in obtaining the emails. The parties disagreed on the admissibility of the emails, with the respondent seeking an order that they be found inadmissible in any proceedings. Justice Kiteley reviewed several cases the applicant proposed in support, but found they did not compare to the accessing of thousands of emails over a prolonged period of time with the intention of using them in various legal proceedings in retaliation. Instead, the judge was prepared to grant the respondent’s declaration.

The court firmly denounced the applicant’s conduct. The judge stated that it is contrary to the objectives of the Family Law Rules to use judicial resources in multiple proceedings to determine the admissibility of evidence when the manner of its acquisition was egregious. Permitting her to admit the documents would reward her behavior, when a declaration preventing her from doing so was an appropriate sanction.

Maintain Your Digital Privacy During Your Divorce

Parties to family law proceedings can be tempted to access private information to benefit their legal position. This often leads to challenges over the admissibility of the information and questions of whether it was improperly obtained. In several cases, courts have weighed the level of privacy an individual can expect to maintain over shared electronic devices or family computers. Parties need to be cognizant of this and think about taking steps to secure their communications and confidential information.

Contact GDH Family Law in Vaughan for Experienced Representation in Family Litigation

GDH Family Law understands that family litigation can create significant anxiety for clients and provides reliable advice on the divorce process, including issues relating to the admissibility of evidence. Our skilled family lawyers create comprehensive legal strategies that position clients for success in court, while still working towards an early resolution whenever possible. To schedule a confidential consultation on your family law matter, please call 416-535-6944 or contact us online.