Santa knows if you've been bad or good. But think twice before mimicking his spying tactics on your spouse — it could land you on a naughtier list than your partner.
Suspicious wives or husbands who seek to catch their betrothed on tape as proof of wrongdoing can find their antics turned against them in the courtroom, lawyers say. And that can cost you.
In an age of ubiquitous recording devices where digital fingerprints are everywhere, breach of privacy remains a major risk.
Surreptitiously gathered "evidence" — obtained through anything from a nanny cam to a Facebook account — can not only work against the person who collected it by tainting their credibility; it often lacks context and may be inadmissible in court, says Laura Paris, an associate lawyer at Toronto-based Shulman and Partners.
Privacy breaches can occur in any space where there was a reasonable expectation of privacy. They include secretly recording others' phone conversations (you’re allowed to record your own), installing spyware on a computer or smartphone and perusing the texts or emails of a spouse or ex-partner, Paris said.
"If we're talking about a social media account, if you haven't given out your password and given someone access to that specific account, one can assume that by finding a way to access it that you're breaching that person's privacy," Paris said.
"The more that you're going out of your way to obtain this information in a manner that is infringing on someone's privacy, the harder it is to use that evidence at a later date."
That rule holds true regardless of the reasons, which can range from rooting out infidelity to financial information.
"The snooping often comes from an angle of trying to paint a certain picture of their spouse," Paris said, like "trying to trash that parent" or undermine their claims.
Infidelity on its own makes little difference in a divorce case, she noted.
Sleuthing can hurt a parent's chances of custody if it borders on stalking or harassment, and a partner can seek damages if an expectation of privacy has been breached, said Andrew Feldstein, a family law and divorce lawyer based in Markham, Ont.
"Before everything was kept electronically, there'd be the family filing cabinet and people would go into the family filing cabinet because they had no expectation of privacy," Feldstein said.
"But now more people have their own cellphones, their own PC, that they're not sharing with their spouse. Just because you're able to snoop and get in doesn't necessarily mean that you're not going to be exposed to that cause of action."
Under Canadian law, a tort known as "intrusion upon seclusion" is grounds for a civil action.
Meanwhile, the recently revised federal Divorce Act includes harassment and stalking in its definition of domestic violence. Those terms refer in part to "calling, emailing or texting someone over and over, following or watching someone’s home or workplace, monitoring someone through apps, software or video cameras, tracking someone’s activities on social media," according to the Justice Department.
"'How do I share parenting decisions with someone who's stalking me?' That's a factor to be considered in the parenting schedule," Feldstein said.
However, simply recording a conversation that you're a part of is not illegal. And hidden bank accounts that you stumble on unawares, such as through a statement left open on the kitchen table, are likely admissible, he said.
Paris referred to one case where a client accessed correspondence through their ex's smartphone.
"The email actually had to deal with this individual reaching out to somebody who helps people ... avoid their obligations that come out of a divorce," she said.
"But because our client accessed the email account without any legitimate reason to to have accessed it, we weren't able to rely on that sort of evidence."
The issue is poised to become even more pronounced as digital interaction takes an increasingly prominent role in daily life.
"With the rise of social media ... we're seeing it come up more and more often to try and draw this line between these ‘he said, she said’ arguments and trying to push the scale on one side over the other," Paris said.
"But again, you need to be careful when you are getting this information."
This report by The Canadian Press was first published Dec. 30, 2021.
Christopher Reynolds, The Canadian Press
