When Family Litigation Gets Personal: Privacy Breaches in Ontario Parenting Disputes

Family disputes can be emotional and contentious when significant issues are at stake, heightening the desire for parties to obtain information and access a spouse’s documents in the hope of bolstering their case. Yet, it is necessary to respect each other’s privacy after separation, as courts have established remedies for individuals whose privacy has been breached. An invasion of privacy can leave you exposed to civil claims, and serious breaches may even leave the injured party with financial or psychological harm.

Respondent Disclosed Information About the Litigation

E.L.R. v. D.M.S. was a contentious case in which the parties had been litigating their family matters for seven years. Among the many issues outstanding was the applicant’s claim for damages for intrusion upon seclusion. Although the respondent had refused to have parenting time with their child and had abandoned his parenting claims, he believed the applicant had alienated the child from him and wished to have a finding of parental alienation made against the applicant.

At the beginning of the litigation in 2020, an order was issued requiring the parties’ names to be initialized, given the privacy interests at stake. The applicant was a practicing member of the family bar, and she was concerned about her reputation and that the proceeding could be damaging to her occupation and her ability to earn an income for herself and her child. The respondent was aware of the privacy concerns, as the applicant had also chosen to pursue arbitration rather than proceed through the courts. Nevertheless, he was dismissive of the applicant’s concerns. In his court motions, he sought to have their names removed from the initialization, but the court disagreed.

There was also evidence in the applicant’s affidavit that the respondent was disclosing details of the litigation to a parental alienation advocacy group. The applicant also claimed that the respondent sent emails and letters accusing her of alienating family and friends, and that the respondent’s supporters used social media to disseminate information about the applicant. Justice McDermot acknowledged that the respondent launched a campaign to prove that the applicant had alienated his daughter from him, and that, when he did not succeed in the courts, he resorted to publicly revealing all the wrongs he believed the applicant had committed.

Ontario Courts Have Recognized Privacy Torts

In Jones v. Tsige, the Ontario Court of Appeal accepted that the tort of intrusion upon seclusion arises “for deliberate and significant invasions of personal privacy”. There, the Court adopted a definition, explaining that the tort arises when one “intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person”.

The tort protects informational privacy and focuses on an intrusion rather than on the disclosure of information. The Court outlined three elements that a plaintiff must prove:

1. That the defendant’s conduct was intentional or reckless;
2. That the respondent invaded their private affairs or concerns without lawful justification; and
3. That a reasonable person would view the invasion of their privacy as highly offensive, causing distress, humiliation, or anguish.

Proof of Loss Is Not Necessary for Damages

Justice McDermot concluded that the respondent’s actions fit within this definition. On the question of appropriate damages, the applicant was unable to quantify her loss, although she claimed to have lost several clients because of the respondent’s actions. Her therapist also gave evidence that confirmed that the disclosure of private information was traumatizing and that the applicant suffered from panic attacks.

In Jones, the Court held that while proof of loss is not an element of the cause of action, in the absence of proof of pecuniary loss, general damages should be limited to “moral” or “symbolic” damages. These recognize the infringement and are “sufficient to mark the wrong that has been done”. The Court also set out several factors to help judges in setting an appropriate damages award, including:

• The nature, incidence and occasion of the defendant’s wrongful act;
• The effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
• Any relationship, whether domestic or otherwise, between the parties;
• Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
• The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

In Jones, the Court did not view the intrusion as exceptional enough to trigger an award of aggravated or punitive damages, and awarded $10,000. Justice McDermot looked at additional cases and noted that other awards have been similarly modest.

Circumstances Warranting Higher Awards

However, the applicant cited other cases where higher awards had been granted. In Jane Doe 72511 v. N.M., the defendant published intimate videos of his partner on a website, disclosing aspects of the plaintiff’s private life. The judge concluded that the plaintiff had a cause of action against the respondent for the public disclosure of private facts without consent. To establish liability, the plaintiff had to prove several elements:

1. The defendant publicized an aspect of the plaintiff’s private life;
2. The plaintiff did not consent to the publication;
3. The defendant publicized an aspect of the plaintiff’s private life; and
4. The publication was not of legitimate concern to the public.

There, the judge found that the breach of privacy rights due to the public disclosure was more serious than in an action for intrusion upon seclusion and loss of information privacy. The judge emphasized that the respondent’s actions compromised the plaintiff’s dignity and personal autonomy, and awarded general damages of $50,000, an additional amount of $25,000 for aggravated damages for the posting of the video on the internet, as well as a further $25,000 for punitive damages.

Judge Finds Privacy Breach Was Intended to Cause Harm

In E.L.R., the judge was concerned that the respondent had a goal of publicly demonstrating that the applicant had engaged in alienating behaviour while practicing her profession. It was clear the respondent found it offensive and continued to try to make it publicly known, despite being warned by the courts against doing so. Ontario courts had already identified privacy concerns for the applicant and their child, with the outcome that their names were not used in the litigation, although the respondent continued to disagree with the initialization of the parties’ names.

Additionally, the applicant’s therapist confirmed that the applicant suffered emotional harm from the respondent’s actions. During the litigation, he had secretly recorded the parties and breached the arbitration agreement by revealing details of the arbitration. He also publicly used the applicant’s name in a civil action that he commenced. The judge concluded that the respondent would have known the applicant was particularly sensitive to her name being used concerning the child-related issues and that this would have caused her harm.

Justice McDermot concluded that the general damages awarded in Jones would have been eroded by inflation in the years since that case was decided in 2012. And here, the respondent’s actions were sufficiently egregious and malicious to warrant aggravated and punitive damages. The judge found that the respondent’s efforts to have a court make a finding of alienation when he had previously withdrawn his parenting claims demonstrated his “malicious intent” and that the purpose of his litigation was to harm the applicant rather than advance legitimate claims before the courts. The applicant was entitled to general damages of $15,000 and aggravated damages of $30,000. Furthermore, his campaign against the applicant needed to be discouraged with an award of punitive damages of $30,000.

Contact Johnson Miller Family Lawyers in Windsor-Essex for Trusted Advice in High-Conflict Family Law Disputes

Privacy breaches in family law disputes can have serious emotional, reputational, and financial consequences. Whether a former spouse has disclosed private litigation details, shared confidential family information, breached an arbitration agreement, or used social media to publicize sensitive allegations, legal remedies may be available.

Johnson Miller Family Lawyers helps parties understand their privacy rights, assess claims involving intrusion upon seclusion or public disclosure of private facts, and respond strategically to harmful conduct during separation, parenting disputes, divorce proceedings, and family litigation. Our experienced family lawyers can advise clients on privacy concerns in family law matters and protect their rights during a high-conflict separation. To schedule a confidential consultation, please call 519-973-1500 or reach out online.