Spying on your ex is risky business: Townsend

By Staff

Spouses who digitally spy on their partners risk civil or even criminal consequences, Toronto family lawyer Leanne Townsend tells

In a recent story, CBC’s Marketplace program reported on a woman whose “smart home” was turned into a tool for harassment and intimidation by her former partner.

According to the news outlet, the woman’s web-controlled devices, including locks, lights, thermostats and cameras, were manipulated by her former partner, even when he was kilometres away, via apps on a mobile phone or other devices.

"In the middle of the night, I'm awoken, and my dogs are awoken, by this blaring music over the audio system. You have lights flickering on and off, TVs going on and off," she told the CBC. "It's almost as if the house is haunted.

"It is only done to cause you trauma, to cause fear, to cause anxiety," the woman added.

As technology advances continue, Townsend, a partner with Brauti Thorning LLP, expects to hear an increasing number of similar stories from splitting spouses.

“Abuse is always about control, and this kind of smart technology is another way for an abuser to achieve that,” she says.

Townsend cautions that spouses who use technology to spy on an ex-partner are putting themselves in legal jeopardy.

“It’s all very fact-dependent, but you could face a lawsuit in civil court for ‘intrusion upon seclusion,’” she says. Townsend explains that such claims only became feasible in 2012, following a landmark Court of Appeal decision that recognized the existence of the tort for the first time in a case involving a bank employee who repeatedly accessed the account records of a colleague after becoming romantically involved with her former spouse.

In a recent family court case, a Superior Court judge ordered a husband to pay his former wife $15,000 in damages for invasion of privacy after he admitted to secretly planting a camera in their bedroom during a reconciliation attempt.

The couple had initially separated about two years into their marriage, but reconciled a year later and moved back in with one another. The judgment says the final separation, a year later, was spurred by the wife’s discovery in their shared bedroom of a key chain that hid a small camera installed by her husband.

While he claimed he was only trying to protect himself from false assault allegations, the judge rejected his explanation.

“The protection excuse advanced by [the husband] makes no sense,” the decision reads. “There are numerous rooms in the house without cameras and if his intention was to protect himself from a false allegation he would have had to plant cameras in all of the rooms.”

The husband also argued that the claim for damages was unfounded because the camera was hardly turned on and, in any case, he never had a chance to download any images from it.

Still, the judge was satisfied that the elements of the tort were proven, noting that the wife was embarrassed and shocked by the discovery of the camera.

“The bedroom and bathroom are very private rooms. The photos do not depict anything explicit, however, the potential to have done so was real. There is no indication what else may have been on the camera,” he concluded.

Townsend says privacy damages will only be awarded if the spying was either “intentional or, if not intentional, you were acting in a reckless way that you should have known would result in the discovery of private information.”

“You must have, without justification, snooped into your ex-spouse’s private affairs and concerns in such a way that a normal person looking at what you have done would consider your actions highly offensive and have caused distress, humiliation, or anguish,” she adds.

Those hoping to use the evidence they secretly gather to boost their case in family court could also be out of luck, since judges may deem it inadmissible in certain circumstances, though it is legal to secretly record conversations “if you are a participant in that conversation,” Townsend adds.

At the more extreme end of the spectrum, she says spying could result in criminal charges in situations involving spyware or electronic devices employed to illicitly record former partners.

“If the secret videotaping is taking place in a bathroom or bedroom where someone is taking their clothes off, that could potentially rise to the criminal level,” Townsend says. “Secretly recording conversations that your spouse is involved in, but you are not a party to, may also ground a criminal charge.”

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