Is Tracking Your Spouse’s Phone, or Hacking Their Computer, Illegal? 

If you’re going through a separation or divorce, you might be tempted to track your spouse’s phone.  These days, it’s easier than ever; plenty of apps can be installed surreptitiously with a few clicks of an “install” button.  They run unobtrusively in the background, and can reveal all kinds of information, including:

• Where your spouse has been, and where they are going in real-time
• Who they have been calling or texting
• What pictures they have been sharing
• The contents of their social media chats

The same can be said for personal computers, where you can gain unauthorized access by various means. You can even install keyloggers, that record the specific keystrokes your spouse uses, and that can reveal passwords that let you do even more snooping.

But the fact that this kind of phone tracking or computer hacking might relatively be easy, doesn’t mean it’s always allowed.  

The fact is that in Canada, the legal issue of whether it is legal to track your spouse’s phone or break into their computer during a divorce can be a complex one, involving both federal and provincial laws. In particular, the use of tracking devices or spyware raises significant privacy concerns, which intersect with criminal law, family law, and privacy law.  Plus, Canadian courts tend to frown on this kind of invasive conduct – and exclude evidence obtained by it – even when it’s done in manner that technically doesn’t break the law. 

This article will discuss the legal background surrounding this issue, relevant court cases, and the potential consequences for those considering engaging in such monitoring.

Tracking Your Spouse’s Phone: A Perspective Under Federal Law

By Analogy to Privacy Legislation

In Canada, tracking a person’s phone or breaking into their computer without their consent can be considered a violation of privacy rights.  

This conclusion is borrowed from the federal privacy law (called the Personal Information Protection and Electronic Documents Act or “PIPEDA”) which regulates how private sector organizations, in the course of their commercial activities, handle “personal information” – which is defined to include any data about an identifiable individual.  Tracking a spouse’s phone, for example, could readily fall under this definition since it can involve collecting location data, messages, and call history.

Admittedly, PIPEDA mainly applies to businesses.  However its principles have influenced broader privacy standards, including those relating to interpersonal relationships. It also sets the tone for how the Canadian law safeguards personal privacy in general.  If only by extension, the key message is that – like businesses – individuals should not collect personal information without consent; in the context of a divorce this would include tracking a spouse’s phone or accessing their computer without their knowledge.

Under the federal Criminal Code 

A more direct prohibition of this kind of tracking is found in the Criminal Code of Canada (the Code). Tracking a spouse’s phone or installing spyware to monitor their activities without their consent can easily fall afoul of the Code on several fronts. In particular: 

• Section 342.1: This is Canada’s computer-related crime provision. It criminalizes unauthorized access to computer systems, including the installation of software on someone’s phone or computer without their consent. This would cover surreptitiously installing spyware, keyloggers or other hacking software on your spouse’s phone or computer. It could lead to charges of criminal mischief, fraud, or even identity theft, depending on the nature of the intrusion.
• Section 184: This section prohibits the interception of private communications – including those made via electronic devices – without consent. This means that if you are tracking your spouse’s phone to intercept text messages, emails, or other private communications, it may constitute a criminal offense that carries significant penalties. (And note that sections 183 and 183.1 covers situations where the tracking or hacking includes the use of audio or video surveillance equipment). Violation of any of these sections involve a breach of privacy laws, and can give rise to criminal prosecution.

Related: Text Messages and Social Media in Divorce Proceedings in Canada

Tracking Your Spouse’s Phone: Is it Illegal Under Provincial Privacy Laws?

Next, there are provincial/ territorial laws across Canada that address privacy rights in general. These laws generally prohibit the collection, use, or disclosure of personal information without consent. Although none of them specifically govern one spouse’s invasion of another spouse’s privacy, there are many provincial laws that provide guidance on the relevant principles, if only by analogy.

First, the Ontario Personal Health Information Protection Act (PHIPA) governs the collection and use of personal health information specifically.  Despite its narrow focus, it again sets the stage for there being a clear obligation to protect privacy to the utmost, and to guard against the disclosure of personal information without the individual’s consent.

Next, Ontario courts have also recognized the tort of invasion of privacy, known as “intrusion upon seclusion.” In the landmark case called Jones v. Tsige, 2012 ONCA 32, the Ontario Court of Appeal recognized that individuals have a right to privacy, and that one individual can sue another for invading it, even without physical damages.  There need only be proof of an intentional and substantial invasion of privacy that a reasonable person would find offensive.

Finally, there are analogies to be drawn in the Employment Law context.  Ontario has enacted specific legislation to address electronic monitoring in the workplace through recent changes to the Employment Standards Act, 2000, S.O. 2000, c. 41.  These address the practice of digital tracking and surveillance by employers, and by extension put focus on privacy concerns in that regard. 

Although there are few court cases on the topic, these various provincial laws strongly suggest that invading your spouse’s privacy during your divorce could attract sanctions against you, in the right circumstances.  At the least, hacking their phone to monitor their movements, or breaking into their computer to review their communication without their consent, could see you facing a civil lawsuit for tort-based damages.

Related: Can I Use My Spouse’s Social Media as Evidence in Our Divorce?

Impact of Tracking Your Spousal’s Phone or Computer on Divorce Proceedings

So far, we’ve talked only about the specific laws that cover this topic.  But from a sheerly personal and practical perspective, this kind of surreptitious tracking can also have significant negative impact on the outcome of your own divorce proceedings. 

First of all, Family courts are often wary of evidence that has been obtained through questionable or illegal means. If you track your spouse’s phone without his or her consent, the information you gather is likely to be excluded as evidence, since you obtained it unlawfully. The courts have demonstrated a strong commitment to protecting individuals’ privacy rights, even in the context of intimate relationships.

Next, Family courts tend to view this kind of tracking as being underhanded behaviour, and as a type of harassment or attempt to control your spouse. This can lead to the court making negative inferences around your credibility, and to ruling against you on some key issues in your divorce. This is especially true if you and your spouse have children, since courts will always prioritize their best interests and must look at both parents’ conduct when determining issues affecting them. 

Finally, the Ontario Family law system is structured so that it strongly encourages spouses to resolve their issues amicably, often using mediation or collaborative law practices. Engaging in deceptive and illegal tactics, such as secretly installing tracking software, undermines these processes.  Again, this can lead to harsher court rulings, even including possible penalties.

Related: Online Security Tips During Your Divorce

Illustrative Cases

To demonstrate the court’s approach in these kinds of scenarios, consider the recent Ontario decision in Chen v. Huang, 2024 ONSC 1173.  The wife had accused the husband of invading her privacy during their Family law proceedings, by accessing her private emails and Facebook messages without her consent.   She discovered the privacy breach when she noticed that these private communications had been attached to the husband’s Settlement Conference Brief, which he then filed with the court.  

She accordingly asked the court to declare that her husband had committed the tort of “intrusion upon seclusion”, and award her damages for the breach of her privacy.

For his part, the husband admitted that he accessed the wife’s private accounts and messages without her consent.  He had obtained these materials through his computer, but it was one the wife had also used during the marriage.  However he argued that there was no real harm, and that he should not be held liable, because they had merely been included in a document filed confidentially with the court. 

The court’s first task was to determine whether it even had jurisdiction to make the declaration the wife was requesting, given that it pertained to a tort claim, rather than Family law per se.  It wrote:

While the Family Law Rules do not specifically address declaratory relief, this court has jurisdiction to make declarations within the context of family law proceedings under the Courts of Justice Act.  This dispute arises with the context of an application under the Divorce Act.   The dispute is real, and both parties have a genuine interest in the declaration being sought.  This specific tort claim however is ancillary to the Divorce Act proceedings.  Nonetheless it will be determined within the context of the family law proceedings and this court has jurisdiction to resolve domestic tort claims within these proceedings.

Next, the court analyzed the elements of the tort of “intrusion upon seclusion”, which was first established in Jones v. Tsige (discussed above). For that tort to be established, the invading party’s actions must be intentional, they must have invaded private affairs without lawful justification, and the invasion must be highly offensive to a reasonable person.  

In this case, all the required elements were met. The husband admitted he had intentionally accessed the wife’s private communications without her knowledge or consent. He used the materials them to gain an advantage in their Family law proceedings, and his breach of her privacy was significant. The court added:

Absent extraordinary circumstances, [such violation would] be highly offensive and cause distress, humiliation or anguish/mental distress to the privacy holding spouse from the objective perspective of the reasonable person.

After declaring that the damages would be assessed at a later trial, the court admonished the husband this way: 

Therefore, I have jurisdiction, and am persuaded, that declaratory relief is warranted in this motion.  This declaration is timely and sends a message to the Husband that such interceptions into the Wife’s personal, private, and confidential electronic communications will not be tolerated. …

Clearly, the Chen v. Huang decision reaffirms that courts will generally not condone the collection and use of communications that were obtained surreptitiously. 

But with that said, there are some circumstances where courts will not only condone such behaviour, but will readily accept the evidence that is generated from it – especially when the best interest of a child are in the mix. 

This was the scenario in Auciello v. Auciello, 2023 ONSC 2266. The parents’ divorce was high conflict.  The wife had secretly recorded three conversations between her husband and their daughter, which took place in the basement of the family home. These recordings were made without the knowledge or consent of either of them.

At the parties’ divorce trial, the husband objected to having the three surreptitious recordings admitted into evidence.  He claimed they were illegally obtained, and – as far as their value as evidence goes – were unreliable. He claimed they should be excluded from evidence based on public policy.

The court disagreed.  It allowed the recordings to be admitted, concluding that their probative value as evidence outweighed any public policy concerns against using them. It acknowledged that courts generally discourage the use of secret recordings in Family law cases, but noted there are exceptions when the recordings provide critical evidence concerning the best interests of the children. 

This was one of those exceptional cases. Here, the recordings demonstrated the father’s use of obscenities in front of the child, his verbal abuse of the mother in the child’s presence, and his attempts to manipulate the child into conveying hostile messages to her mother. They also provided valuable insight into the father’s behaviour during parenting time, and his troublesome pattern of verbal abuse and manipulation. The court found that these recordings were highly relevant to assessing the father’s parenting abilities and – most importantly – the children’s best interests in the ongoing Family law dispute between the parents.

Cautionary Tips for Spouses

It bears repeating:  Tracking your spouse’s phone, or monitoring their computer without their consent, is a bad idea in all but the rarest of circumstances.  Even if you suspect your spouse of infidelity or other wrongdoings, this kind of misconduct is generally frowned on by Family courts, and more importantly could result in criminal charges and civil lawsuits.

Here are some tips for you to consider, instead:

1. Seek Legal Advice: If you believe that you need evidence of your spouse’s behavior (e.g., infidelity, hidden assets), the better course is to consult with an experienced Family lawyer. He or she can guide you on what methods of gathering evidence are lawful and admissible in court.
2. Use Legal Discovery Methods: The Family justice system in Canada has robust procedures for obtaining information; this includes a legal obligation by each spouse in a divorce to provide fulsome and ongoing financial disclosure. It also covers the opportunity for the court to order production of documents or information, such as communication history and financial records.

On the flip-side, if you suspect your spouse may be tracking your activities, consider taking steps to protect your own privacy. Change passwords, secure your devices, and consult with a divorce lawyer or privacy expert to ensure your personal information is safe.

If you have any further questions on this nuanced topic, feel free to give our offices a call.