The Snooping Spouse Problem: Insights from Moran v. Moran

  • April 09, 2024
  • Katherine Allen, articling student at Burrison Hudani Doris LLP

A violation of privilege “destroys the level playing field and creates a serious risk to the integrity of the administration of justice. To prevent such a danger from arising, the courts must act swiftly and decisively.”

This was the strong warning from the Supreme Court in Celanese Canada Inc. v. Murray Demolition Corp, 2006 SCC 36. How might this apply to the all-too-common problem of a party who accesses their spouse’s private documents?

This was the theme of Justice Kraft’s recent decision in Moran v. Moran, 2023 ONSC 6832. In this case, Kraft J. made a restraining order against the wife and ordered her to pay for a third-party forensic audit after she copied the husband’s private computer files onto her laptop.

The parties were married for 25 years and had been separated for 4 years. During questioning, the wife admitted that she had entered the matrimonial home, where the husband had been exclusively residing, and copied the husband’s private computer files, documents, emails, and text messages onto her laptop. She then took the laptop home, reviewed the documents, deleted some of the documents, and shared documents with her counsel.

Generally, when a party makes a claim that the other party has surreptitiously accessed their private and confidential information, there is a threshold issue to determine: whether, on a balance of probabilities, there is reason to believe that the allegation is true. Subsequently, a court must determine the admissibility of the surreptitiously obtained evidence.

In this case, the wife had already admitted that she had accessed the husband’s computer files. However, there was no way for Kraft J. to determine the admissibility of the evidence as the husband did not know what evidence the wife had taken.

Kraft J. held that the husband was entitled to know what documents the wife had taken and shared with her legal team. She further found that without a complete review of the wife’s computer, it was impossible for the husband to know the extent of the privileged materials she had accessed.