Court Grants Remedy After Wife Surreptitiously Accesses Spouse’s Privileged Information

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Written on behalf of Shariff & Associates

Maintaining the confidentiality of private and privileged information is necessary in family litigation. However, a former spouse may try to gain unauthorized access to information and use it in their court case. In these instances, courts have to determine the admissibility of the evidence and fashion remedies that maintain the integrity of the judicial process. Parties should think about how they can protect their digital information after separation. 

Wife Accesses Husband’s Private Documents

In Moran v. Moran, the parties were married for 25 years. After separation, the wife copied the husband’s private computer files, including confidential information and his correspondence with third parties, and she shared some of the documents with her counsel. The complete scope of the documents the wife accessed was unknown. The husband brought a motion to compel the wife to provide the computer she used to download the information so that a third-party forensic investigator could audit the electronic documents she accessed and shared. He also sought an order restraining the wife from sharing any information she obtained with third parties. 

The wife admitted to accessing the husband’s private files and blamed the husband for having to take those steps. The judge found the husband was entitled to know what documents the wife accessed and shared with her legal team. Justice Kraft also accepted that without a complete review of the wife’s computer, it would have been impossible for the husband to know how much-privileged information she had obtained. Citing Celanese Canada Inc. v Murray Demolition Corp, the judge noted that a “violation of privilege poses a significant threat to the administration of justice.” 

Court Applies Test to Evaluate Access to Privileged Documents

In 2177546 Ontario Inc. v. 2177545 Ontario Inc., the Ontario Court of Appeal set out a test to resolve unauthorized access to privileged documents. In the first stage, the moving party must establish that the opposing party has accessed relevant privileged material. In the second stage, the risk of significant prejudice is presumed. The moving party does not have the onus of proving “the nature of the confidential information” disclosed. Instead, the opposing party must rebut the presumed prejudice arising from accessing privileged information. This can be achieved by identifying “with some precision” that (1) the opposing party did not review any of the privileged documents in their possession, (2) the opposing party reviewed some documents, but they were not privileged, or (3) that the privileged documents reviewed were not likely to be capable of creating prejudice. Additionally, courts have stated that the evidence needs to be “clear and convincing” such that one could be “satisfied that no use of confidential information would occur.” 

In circumstances where the extent of privileged information is unknown, courts should “infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant.” In Celanese, the court explained that there are compelling reasons to presume prejudice and impose a reverse onus when privileged information has been received. This included that:

  1. Requiring the party whose privileged information had been accessed to prove actual prejudice would require the further disclose of privileged or confidential materials;
  1. The party best equipped to discharge a burden is generally required to do so, and this would be consistent with placing the burden on the party who has access to the privileged information. And in Celanese, the Supreme Court noted this would increase the incentive to “take care to ensure that privileged information is not reviewed in the first place.” 
  1. It would be procedurally unfair to require the party whose information had been disclosed to carry “the onus of the onus of clearing up the problem created” by the [other’s] carelessness.” 

The third stage requires the court to fashion an appropriate remedy. Celanese also sets out a non-exhaustive list of factors that should be considered when settling on an appropriate remedy, including looking at:

  1. How the documents came into the possession of the appellants or their counsel; 
  2. What the appellants and their counsel did upon recognition that the documents were potentially subject to solicitor-client privilege;
  3. The extent of review of the privileged material;
  4. Contents of the solicitor-client communications and the degree to which they are prejudicial;
  5. The stage of the litigation; and
  6. The potential effectiveness of a firewall or other precautionary steps to avoid mischief.

In Moran, the husband sought to have a third party conduct a forensic review of the wife’s computer to determine what documents the wife downloaded and when she accessed and deleted them, as well as review related metadata. The judge agreed that the scope of documents the wife accessed could not be determined without a forensic investigation. And only once that was completed could the admissibility of the information be determined. The husband also suggested the wife should be responsible for paying the costs of the forensic audit. Justice Kraft found that she should pay the upfront costs of the audit and that they were subject to reapportionment at trial.

Forensic Investigation Justified to Determine What Documents Were Accessed

The husband requested that the wife be restrained from distributing any information she obtained from his computer to third parties. In contrast, the wife argued that a restraining order was unnecessary and that the husband was “overreaching” in seeking the order. Section 46(1) of the Family Law Act gives courts jurisdiction to make a restraining order “if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful.”  Justice Kraft looked at the 1999 decision of Callon v. Callon, which held that an interim restraining order “is to permit both litigants the opportunity to conduct their litigation in as reasoned an atmosphere as may be possible.” 

Likewise, in P.F. v. S.F., the judge explained that a restraining order provides the litigants with “some element of order” within acrimonious litigation. 

The judge disagreed with the wife that the order was inappropriate. First, she had already taken records from her husband’s computer without consent. And Justice Kraft found she had no difficulty disseminating that information to third parties. During questioning, she admitted that she had provided copies of the records to her lawyers and accountants. Permitting her to continue to distribute those private records would not be fair. In the litigation context, the husband was entitled to know that the wife would be restrained from further distributing any of his documents. It was also reasonable for the wife to be required to produce a list of all contact information to identify all of the individuals to whom she sent the husband’s records. 

Unauthorized Accessing of Documents Not the Answer to Disclosure Issues 

The lack of financial disclosure is a serious family law issue, but parties cannot resort to self-help measures and surreptitiously obtain unauthorized access. Parties have a reasonable expectation that their private computer files will be confidential, and courts are clear that breaches of privileged communications threaten the administration of justice. 

Experienced Stouffville Divorce Lawyers Offering Compassion And Experienced Representation In Family Law Matters

Parties involved in family law litigation must take steps to protect their private and privileged information. If you suspect your spouse has accessed your confidential documents without consent, seeking legal advice is crucial. Our experienced family law lawyers can help you understand your rights and options and provide guidance on protecting your information and pursuing appropriate remedies. 

Call us at 905-591-4545 or complete our contact form to discuss your matter with a compassionate and experienced team member.