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What Constitutes Reasonable Privacy During a Divorce?

An invasion of privacy is not uncommon in cases of divorce; parties often go through each other’s e-mails, banking records, and other documentation without the other person’s knowledge or consent. Most people however, are unaware that there could be serious legal consequences associated with accessing another person’s or their spouse’s private information.

In Ontario, if a party willfully and deliberately invades their spouse’s privacy, this may be sufficient on its own to give rise to an independent cause of action in tort. To qualify as an invasion of privacy (“intrusion upon seclusion”), the following must be proven by the person making the claim:

  1. that the other person’s action or conduct was intentional or reckless;
  2. that the other person invaded their private affairs or concerns without lawful jurisdiction; and
  3. that a reasonable person would regard such an invasion as highly offensive, causing distress, humiliation or anguish.

For the purposes of family law, “snooping” through (accessing without consent or permission) a spouse’s personal email or other personal sources of information could constitute an invasion of privacy, and result in a civil claim for damages. This risk arises merely from the intrusion, and no proof of actual loss or damages is required. Therefore, while it is okay to collect account statements and financial records that you have access to without the use of any passwords, the following activities may put you at risk:

  • Going through your spouse’s private letters, documents, and records
  • Digging through your spouse’s personal e-mails, voicemails, social media accounts and messages, and computer/cell-phone records
  • Accessing or copying correspondence between your spouse and their lawyer
  • Installing spyware, tracking devices, or secretly recording their conversations

For more information regarding your or your spouse’s reasonable privacy, or for general assistance with your divorce and other family law matters, please contact Feldstein Family Law Group to book a free consultation.

 

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