BC Family Law Privacy Lawyers

BC Family Law Privacy Lawyers handle cases where texts, emails and other documents are discovered accidentally or more deliberately by the other spouse in a family law proceeding. MacLean Law’s BC Family Law Privacy Lawyers also deal with cases where someone has taped or video recorded the other spouse or their children.

These family law cases involve balancing the privacy interests of a spouse or their children versus the interests of ensuring relevant and material evidence is available to the court to enable it to make a proper decision. These cases are complex and a skilled and experienced family lawyer is able to sort through the competing interests for you to help ensure justice is done.

MacLean Law’s BC Family Law Privacy Lawyers are part of Vancouver’s top rated family law firm and we have offices across Western Canada in Vancouver, Calgary, Surrey, Richmond, Kelowna Fort St John and Winnipeg.

BC Family Law Privacy Lawyers

As much as technology can be used to aid the dispute resolution of family law matters, families in the midst of breakdown also face new challenges in the digital age. One of these issues is, when can a spouse use documents belonging to the other spouse, and found on a home computer, as evidence in a family law proceeding?

BC Family Law Privacy Lawyers Explain Critical New BC Appeal Decision

The BC Court of Appeal shed some light on this question in its recent decision on September 15, 2016, Gonzalez v. Gonzalez, 2016 BCCA 376. In this case, the husband, Mr. Gonzalez claimed his privacy had been invaded by his wife, Mrs. Gonzalez, after she secretly accessed documents by hacking through passwords on a computer located at her home, which her husband occasionally used. Mr. Gonzalez argued that this was a clear breach of his privacy, and the documents should not be allowed as part of his wife’s affidavit evidence. The case was heard before a Master, who disagreed with Mr. Gonzalez and did not find his privacy had been breached. In order for privacy to be breached, the person whose privacy is at stake has to have had a reasonable expectation of privacy in the documents/evidence in question. At the Supreme Court, the judge found that Mrs. Gonzalez did not obtain the documents from password-protected areas, and the husband had, at most, had only a slight expectation of privacy in the computer.

Mr. Gonzalez, having twice lost his case, then began a civil action against Mrs. Gonzalez, asking for damages (money) for breach of privacy under the Privacy Act. The case was struck on the grounds of res judicata (the issue had already been decided) and abuse of the court’s process. Mr. Gonzalez appealed. The British Columbia Court of Appeal upheld the lower court’s decision, finding that Mr. Gonzalez could not argue the same issues that had already been decided by bringing them to a different court with the same evidence, and asking for a different result. In the appeal, the judge again considered whether “admission of the documents would prejudice the administration of justice because of the allegedly improper manner in which they were obtained” (para 8).

Expectation of Privacy Matters Say BC Family Law Privacy Lawyers

Critical to the issue of improper retrieval of the documents was whether Mr. Gonzalez had had a reasonable expectation of privacy in the computer and the documents accessed through its use. The judge determined that it had already been decided that Mr. Gonzalez did not, in the decision by Justice Butler.

So, why did the judge find that Mr. Gonzalez had no expectation of privacy in the computer?

The appeal judge reproduced many of the reasons from Justice Butler’s decision. First, Justice Butler found as a fact that the computer belonged to Mrs. Gonzalez, the computer was used by other family members, including Mr. Gonzalez, Mrs. Gonzalez let Mr. Gonzalez use the computer on a temporary basis, and some of the documents Mrs. Gonzalez put forward were from Mr. Gonzalez’s email account (para 11)

Butler J. found that Mr. Gonzalez left the documents in “readily accessible conditions” – they were not password protected. He concluded that “any expectation of privacy that he may have had . . . would have been slight” (para 11).

The appeal judge took the reasons of Butler J. into consideration, and found that there were not any new issues – everything that Mr. Gonzales brought up in the civil claim had already been decided during the family matter by the Supreme Court judge. The appeal judge stated, at para 29:

[29] The parties are the same, the factual matrix is the same and the issue of whether Mr. Gonzalez had a reasonable expectation of privacy in the computer and its contents are the same. The factual matrix and question of reasonable expectation of privacy have already been determined by Butler J., and not in Mr. Gonzalez favour.

Mr. Gonzalez’s appeal was dismissed, with costs. The judge did not award special costs to Mrs. Gonzalez.

BC Family Law Privacy Lawyers can help ensure a family law case is fairly decided. Our lawyers can guide you safely through the legal minefields of hacking, snooping, spying, or merely stumbling across painful yet powerfully important documents and information.