Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.
In January 2012, the Ontario Court of Appeal’s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.
In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However, it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.
Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.
With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt by the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence that was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.
Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.
The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your personal privacy situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers.