Law Times

Law Times • February 23, 2015 Page 13 www.lawtimesnews.com Privacy matters Spouses warned against spying on former partners By Judy van rhiJn For Law Times hile the use of social media in family law cases is common, ques- tions linger over a spouse's ac- cess to other digital information relating to a former partner as privacy and evidentiary con- siderations make snooping on someone's online world a tricky and potentially costly exercise. William Abbott, a partner at MacDonald & Partners LLP, says rulings in the privacy law sphere are finding ready accep- tance in the family law arena. "As we get more and more into the electronic age, we will see an expansion of the Jones v. Tsige doctrine of intrusion upon se- clusion. It will be far easier to install tracking and recording devices, but that infringes on people's privacy and there is very low benefit." Kenneth Fishman, an as- sociate at Basman Smith LLP in Toronto, agrees. "Spying is never a good idea. Everyone is entitled to an expectation of pri- vacy. Certain things are sacred like a diary or e-mails. It's not common to break into e-mails, but as society becomes more technologically advanced we are going to see more and more of these cases." He believes that if someone has obtained information by hacking, there are clear evi- dentiary issues. "With bank ac- counts, you could get in through a password given to you during the marriage that just hasn't been changed, but even if you know someone's password, it is their private domain. If one spouse broke into banking re- cords and found information that was not disclosed, on the one hand, the one who didn't di- vulge would have a problem but the first spouse would also have a problem." Other practices that fall afoul of criminal and privacy rules are placing GPS tracking devices on someone's car, secret recordings, the installation of spyware, and intercepting e-mails involving opposing counsel. "We say, and all lawyers should say, we can't look at that," says Abbott. "I'm not sure what benefit there is to spying. I'm not sure what infor- mation you are going to get that you couldn't get by other means." He believes suspicion drives a great deal of intrusive behaviour that's ultimately not beneficial to the case. "A common reason is to see if the person has a new partner, but that is irrelevant to most aspects of family law. We have no-fault divorce. The ex- ception is where you fear there may be harm to the children, but you can get that information by having the children interviewed by an assessor or by the Office of the Children's Lawyer. The other reason people spy is to see if someone is working. Unless they are working for cash, in which case we would get a private investiga- tor to conduct sur- veillance, the easier way is to get a credit bureau report, get bank statements or interview the spouse. If you look at the cost in a cost- benefit analysis, there are far more cost-efficient ways of doing it." Fishman believes there are sufficient tools and safeguards within the family law rules to obtain disclosure. "People are no more effective at hiding things than they were 10 years ago. The Internet did not open up ways of hiding things. People are still working with the same banks. If they are funnelling money overseas, that's al- ways hard to figure out but you don't need to resort to spying. You have the ability to go to court and get a very broad order. You can even get an or- der for third-party disclosure and go straight to the bank." There are op- tions, says Abbott. "In the family law context, one thing that parties don't use enough is Rule 19(1). If a party asks for an affidavit of docu- ments, then it has to be produced within 10 days. If you suspect that they are up to no good, as soon as the pleadings have closed, always ask for it. They have to disclose if they are intending to rely on surveillance. They have to pro- duce bank statements. If bank ac- counts are not disclosed and you subsequently find others, because it's a sworn document, their cred- ibility is shot. If you suspect that information is missing, you can file a Form 20 request for infor- mation or you can run a credit report. It is cheaper and more ac- curate than surveillance and it is admissible." Spying can also place a party at risk. "There is developing case law that if you do spy, the other party could sue you," says Fish- man. He warns, however, that it doesn't mean the other person has suddenly hit the jackpot. "If you find your spouse has been spying, you won't get rich. The court is limiting the amount of damage so that it is not too crushing." LT Federation of Law Societies of Canada 2014 Family Law Program Fairmont Whistler British Columbia July 14-17 2014 Mark Your Calendar! Please visit www. sc.ca http://www. sc.ca/en/national-family-law-program/ for information updates Special rates have been negotiated at the Fairmont Whistler from 199.00 single or double. Bedroom room block rate includes July 12 to 18, 2014. The conference rate is also available three days prior and three days after the group dates at the contracted group rates based on availability. Reservations link: https://resweb.passkey.com/go/n c2014 or call the Fairmont Whistler Inhouse Reservations Department at 1-800-606-8244 to make reservations. Callers should identify themselves as being with the National Family Law Conference or group code "0714FLSC" in order to receive the group rates. Federation of Law Societies of Canada National Family Law Program FederationofLaw_LT_Nov4_13.indd 1 13-10-30 11:28 AM Your proposal must be received no later than May 30, 2015 Please submit your Family Law proposal by mail to: Heather Walker Program Co-coordinator P.O. Box 244 Woodville, ON K0M 2T0 or E-mail: nationalfamilylawprogram@sympatico.ca ( Please identify the proposal as a submission for the 2016 program on the re line of the e-mail) Note: Presenters will receive a contribution toward travel and accommodation expenses. National Family Law Program 2016 Federation of Law Societies of Canada 2016 National Family Law Program Location: Atlantic Canada CALL FOR PAPERS Planning for the National Family Law Program in 2016 is underway. We are inviting submissions of proposals for Papers/Presentations under the following guidelines: 1. One page outline of topic(s), format of presentation and estimated time for presentation or workshop. 2. Your agreement to provide an original written paper on the topic(s) by May 30, 2016. 3. Your agreement to participate in other presentations as workshop leader or panelist if required. 4. Please include a copy of your curriculum vitae and co-presenters with your submission. submissions of presentation or workshop. 2016. panelist if required. submission. 2015 line of the e-mail) accommodation expenses. Please print clearly Name: ___________________________________________ Firm: ____________________________________________ Address: _________________________________________ City: _____________________________________________ Province: ________________________________________ Postal Code: ______________________________________ Telephone#:(____) _________________________________ Fax#:(_____) ______________________________________ E-Mail: ___________________________________________ I wish to receive more information about the program when available. Please send this form to: Heather Walker Program Coordinator National Family Law Program Federation of Law Societies P.O. Box 244 Woodville, ON K0M 2T0 Phone: (705)879-3082 (message centre) E-mail: nationalfamilylawprogram@sympatico.ca FOCUS W Those who spy on their former spouses can land themselves in significant legal trouble. Photo: Jiri Hera/Shutterstock

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