How to Avoid Invasion of Privacy During Divorce
The divorce process is stressful and emotionally charged. It can make former spouses – who were formerly committed and in love – behave very badly toward each other, and in ways that are out of character. This can look like one-upmanship, retribution, vindictiveness, or a scorched-earth approach to divorce litigation. It can involve conduct that is destructive, underhanded, and even contrary to the law.
One common temptation is for a spouse to violate the other’s privacy. Not only does this violate the other spouse’s trust, it can exacerbate an already-contentious divorce process. It can even prompt serious legal consequences. Here are some important points to know:
What is an Invasion of Privacy?
Simply put: An invasion of privacy is when someone accesses, uses, or shares another person’s personal information or private activities without consent. In the context of a divorce, this could include:
- Reading your spouse’s emails, text messages, or social media messages without his or her permission.
- Accessing their financial accounts or credit card statements without consent.
- Placing tracking devices on their vehicle or phone.
- Installing spyware or monitoring software on their electronic devices.
- Sharing private information or photos of your spouse with others without their consent.
Related: Is Tracking Your Spouse’s Phone Illegal?
Privacy Laws in Canada
Canada has several laws that protect individuals’ privacy, and these extend to divorce situations. These consist of laws that apply at both the federal and provincial levels, and which carry serious consequences for those who violate them.
Criminal Offences
The Criminal Code of Canada contains several provisions that address breaches of privacy. For example:
- Section 184 – Interception of Private Communications. This provision makes it illegal to intercept someone’s private communications (e.g., phone calls, emails, or text messages) without their consent. This includes installing spyware on electronic devices or hacking into an email account.
- Section 342.1 – Unauthorized Use of a Computer. This covers accessing or intercepting someone’s computer system, phone, or online accounts without their permission. If you share a device or account with your spouse, this covers accessing it without their explicit consent.
- Section 162 – Voyeurism. This adverts to recording or distributing intimate images or videos of your spouse without their consent. This covers a spouse attempting to use intimate material to shame or blackmail the other.
Provincial Privacy Legislation
In addition to the Criminal Code, each province in Canada has its own privacy laws. In Ontario, the courts have recognized the tort of “intrusion upon seclusion”; this allows an individual to sue for damages if someone intentionally invades their privacy in a manner that would be considered highly offensive to a reasonable person. It can cover unauthorized access to emails, financial accounts, or private information.
Related: Criminal Charges in High-Conflict Canadian Divorces
How to Avoid Breaching Your Spouse’s Privacy During a Divorce
Avoiding an invasion of privacy is not only a legal obligation, but also an ethical one. Here are some practical tips:
- Respect Boundaries. Even if you are still living under the same roof, respect your spouse’s right to privacy. Do not open their mail, check their devices, or access their personal accounts without permission.
- Do Not Install Tracking Devices or Spyware. Placing a GPS tracker on your spouse’s vehicle or installing spyware on their phone may seem like a great way to gather evidence but it is illegal, and could backfire in court. Any evidence obtained through illegal means is likely inadmissible, and could even lead to criminal charges.
- Be Cautious with Shared Accounts and Devices. If you share a bank account, email account, or electronic device with your spouse, avoid using them to access their personal information without their explicit consent. Consider separating accounts or devices to maintain clear boundaries.
- Do Not Share Private Information. Refrain from sharing or posting private information, photos, or videos of your spouse on social media or with others. Sharing intimate images without consent (often referred to as “revenge porn”) is a criminal offense under the Canadian Criminal Code.
- Seek Legal Advice. If you suspect your spouse is hiding assets or withholding information, consult your lawyer. They can guide you on lawful ways to obtain the necessary information, such as through court-ordered financial disclosure.
Related: Online Security Tips During Your Divorce
What to Do If Your Privacy Is Invaded
If you believe your privacy has been violated during a divorce, there are steps you can take:
- Document the Breach. Keep records of any incidents, such as screenshots, emails, or witness statements.
- Contact the Police. If the breach involves criminal behavior, such as hacking, stalking, or the distribution of intimate images, report it to the authorities.
- File a Civil Lawsuit. In cases of significant privacy violations, you may have grounds to sue for civil damages under Ontario privacy laws, or the recognized tort of intrusion upon seclusion.
- Speak to Your Lawyer. Your lawyer can help you address the breach and take appropriate legal action.