D(SJ) v P(RD), 2023 ABKB 84

Court of King’s Bench of Alberta Citation: D(SJ) v P(RD), 2023 ABKB 84 Date: 20230215 Docket: FL03 57440 Registry: Edmonton Between: S J D Applicant - and - R D P Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice S. Leonard _______________________________________________________ I. Background [ 1 ] The parties came before me at the direction of the Case Management Justice for a hearing on the admissibility at a trial of text messages SJ obtained from RD’s cell phone.

By letter dated November 29, 2022 and pursuant to the Case Management Justice’s authority under Rule 4.14(2), I was named to hear this application. Pursuant to Rule 4.14(1)(g)(i), my decision is binding on any future trial in this matter.

II. Overview [ 2 ] The parties were in a relationship for over 20 years and were never married. They separated on September 5, 2018. There are two children of the relationship; aged 17 and 12. Since their separation, the parties have been involved in contentious litigation around child and spousal support. [ 3 ] SJ seeks to admit as evidence at trial, text messages between RD and other third parties, primarily his new partner. RD is opposed to SJ’s use of the text messages at trial on the basis that the text messages were obtained in violation of his privacy interests.

He argues the prejudicial effect of the text messages outweighs their probative value. [ 4 ] SJ obtained the messages from a phone she found in RD’s truck (the Cell Phone) while the truck was being seized by bailiffs. The messages submitted as part of this application date from November 2018 to September 2019.

SJ’s position is that the text messages are probative to the issues of spousal and child support because they support her theory that RD has been hiding his income from her and is intentionally underemployed. [ 5 ] Having considered the circumstances in which the text messages were obtained by SJ, the privacy interests engaged, and the probative value versus prejudicial effect of the messages, I find that the text messages are admissible at trial on the following conditions: • Counsel for SJ must provide the entire text message record to Counsel for RD.

In addition, the Cell Phone must be made available to counsel for RD for review to verify the completeness of the record. • I make no finding as to the reliability or weight to be given to the text messages, nor do I make any findings with respect to how they can be used by the parties at trial. Having determined the threshold issue of admissibility, the trial judge will determine, using the rules of evidence, the manner in which the parties may use these records. III.

The circumstances in which SJ came into possession of the text messages [ 6 ] Before their separation, the parties paid for a truck with a loan in both of their names. After they separated, RD kept the truck and SJ kept a different vehicle. Although the truck loan was in both their names, there is conflicting evidence regarding the truck’s registration. The truck was initially registered in both their names however, the evidence is conflicting regarding the status of the registration at the time in issue.

SJ testified that she did not know whether the truck was registered in her name while RD testified that the truck was registered only in his name. [ 7 ] In late 2020 and early 2021, the bank sought to repossess the truck as payments were not being made. RD was working out of town and SJ did not know where the truck was. SJ was being contacted by the bank and bailiffs because of the non-payment of the truck loan. SJ made efforts to locate the truck by posting it as missing on social media. Eventually, the bank was advised of the truck’s location and SJ asked the bank to disclose the address to her.

The bank sought RD’s permission to do so. RD testified that he asked the bank not to disclose the location of the truck to SJ. [ 8 ] On January 26, 2021, a bailiff contacted SJ and informed her that the truck had been located, that it would be seized the following day, and that the bailiff had to serve her with related documents. SJ arranged to meet the bailiff at the truck so that she could be served with the documents. [ 9 ] The truck was parked at the residence of RD’s niece.

When she arrived, SJ noted that there were personal items in the vehicle, including items that belonged to her, such as old compact disks. There was also a children’s movie on DVD, scattered papers, RD’s guitar, and the Cell Phone. SJ asked the bailiff what was going to happen with these items. The bailiff informed her that the items would be disposed of.

With the bailiff’s permission, and using her key, SJ entered the truck and removed the personal items, including the Cell Phone. [ 10 ] RD testified that prior to the seizure, he arranged with someone in the bailiff’s office to come collect his personal items from the truck sometime in the following two weeks, when he returned to Edmonton. When his niece alerted him to SJ’s presence at the seizure, RD began emailing SJ demanding that she not remove any of the contents of the truck. SJ testified that she removed the items from the truck before she received any messages from RD.

She acknowledged receiving messages from RD before she left the site. SJ’s evidence was that RD did not mention the Cell Phone and that the messages were to the effect that he did not want her to take anything. [ 11 ] SJ accessed the text messages stored on the phone and used a program called “Decipher Tools” to download the messages as .pdfs. She seeks to admit at trial 37 pages of messages (not all pages are unique). RD contests the application and argues that the text messages are inadmissible because they were improperly obtained by SJ. IV.

Does RD’s privacy interest prevent admission of the text messages? [ 12 ] I acknowledge that RD has a privacy interest in the text messages. There is no doubt that he did not intend for SJ to obtain the text messages, however, the existence of a privacy interest is not determinative in this case. I find that SJ’s conduct was not so high

handed or offensive to call out for judicial intervention. [13] Counsel for RD argues the text messages are not admissible at trial because they are private communications. Counsel pointsto Jones v Tsige, 2012 ONCA 32 (Jones), where the Court recognized the tort of intrusion upon seclusion and awarded damages againsta “defendant who had used her position as a bank employee to access and view (but not disseminate) the financial records of the formerspouse of a man the defendant was in a relationship with”:

summary quoted from ES v Shillington, 2021 ABQB 739 at para 25(Shillington).

The elements of intrusion upon seclusion, as it exists in Ontario, are: • an intentional intrusion, physically or otherwise, upon the seclusion of another, or their private affairs or concerns; • an invasion that is without lawful justification and which is highly offensive to a reasonable person: Jones at para 70. [14] In Jones, the Court clarified that a claim for intrusion upon seclusion “will arise only for deliberate and significant invasionsof privacy...” including intrusions into “one’s financial or health records, sexual practises and orientation, employment, diary or privatecorrespondence that, viewed objectively on the reasonable person standard, can be described as highly offensive”: para 72. [15] This Court, and the Alberta Court of Appeal, have affirmed that there is no common law cause of action for a breach ofprivacy in Alberta: Shillington at para 36; Benison v McKinnon, 2021 ABQB 843, para 12; Al-Ghamdi v Alberta, 2017 ABQB684, aff’d 2020 ABCA 81. [16] Shillington was a case where the Plaintiff’s intimate partner repeatedly posted sexually explicit photographs of her onpornography websites.

The Court recognized, for the first time in Alberta, the tort of public disclosure of private facts. In doing so, theCourt recognized that the right to privacy is “enshrined in the Charter, the Criminal Code, statute, and tort law. Further, the increaseduse of new technologies has created rapid societal change that has created new possibilities for privacy breaches that require adequatelegal protection”: para 55. [17] Shillington and Jones illustrate the kinds of privacy breaches that elicit judicial intervention.

The common element in bothcases is that the breach much be “highly offensive to a reasonable person”: Shillington at para 68 and Jones at para 70. [18] I acknowledge that RD communicated with SJ to the effect that she was not to remove any items from the truck. It is not clearwhether RD was aware at that point that SJ had the Cell Phone, however, I accept that SJ would have been aware that this was RD’sphone. Though the Cell Phone may have been on a family plan, there is nothing in the circumstances to suggest that RD was waiving hisprivacy interest in the Cell Phone, particularly regarding SJ.

The parties are engaged in contentious family litigation and RD had madeefforts to keep SJ from finding the truck. SJ would have known that RD did not want her to see the contents of the phone. As such, I findthat SJ violated RD’s privacy interest in the text messages. [19] However, give the circumstances, I am of the view that SJ’s actions do not rise to the level of being “highly offensive to areasonable person,” and therefore do not cry out for judicial intervention. Shillington and Jones, were both cases where the privacybreaches at issue were the result of abuses of power on the part of the Defendants.

The same cannot be said in this case. RD deactivatedthe Cell Phone after he obtained a new phone. He left the Cell Phone in a truck that was being repossessed by bailiffs. SJ was jointlyresponsible with RD for the truck loan. SJ had a key to the truck and was present at the location of the truck to be served with paperworkby the bailiff. There is no evidence that SJ was aware that the Cell Phone was in the truck before she arrived on the scene, nor is thereany evidence that the bailiff at the scene or SJ were aware that RD had arranged with the bailiff’s office to pick up his belongings twoweeks later.

In the circumstances, I conclude that the text messages are not inadmissible because of the violation of RD’s privacyinterest. V. General legal framework for admissibility [20] The Supreme Court recently restated the test for admission of all evidence: Judges must consider: (

a) whether the evidence is relevant; (

b) whether it is subject to an exclusionary rule; and (

c) whether to exercisetheir discretion to exclude the evidence. (R v Schneider, 2022 SCC 34, para 36)

a) Relevance [21] Throughout this litigation, SJ has maintained that RD has, to reduce support awards, not provided full and accurate disclosureof his income. She further submits that he has been intentionally underemployed. On their face, the messages between RD and his newpartner indicate that he had an arrangement with his employer to reduce the income that would be reflected on Line 150 of RD’s taxreturn and that he had other plans to hide income, including setting up a company overseas.

The messages also suggest that he would beable to secure paid employment with just one phone call and that he intentionally allowed the bank to foreclose on the matrimonialhome. [22] Evidence is relevant if it tends to make a fact in issue more or less likely: R v Arp, (SCC) at para 38 (Arp).The threshold for relevance is low.

It cannot be too speculative or equivocal, but it also need not “firmly establish...the truth or falsity ofa fact in issue”: Schnieder at para 39, citing Arp and R v White, 2011 SCC 13. [23] An accurate determination of the parties’ income is crucial to the determination of the amount of spousal and child supportowed. Child support is the entitlement of the child, and it is in the best interests of the two children to have any support that RD owescalculated according to his true income. The text messages are relevant.

b) Exclusionary Rules

[24] RD’s arguments in support of his position that the test messages are not admissible, were focussed entirely on the issues ofprivacy and the lack of probative value of the text messages. It is possible that certain specific text messages in the bundle of textmessages may engage an exclusionary rule. This issue is reserved for the trial judge.

c) Judicial Discretion: Weighing Probative Value Against Prejudicial Effect [25] There are important policy reasons for limiting the admissibility of surreptitiously or improperly obtained evidence in familylaw matters. Behaviour that increases conflict in families is not in the best interests of children and should be admonished. The questionis whether the probative value of the text messages outweighs their prejudicial effect. [26] “Probative value relates to the degree of relevance to trial issues and the strength of inference that can be drawnfrom evidence”: Schnieder referencing R v Handy, 2002 SCC 56.

To assess probative value, the evidence’s relevance and reliabilitymust be considered. At this stage of the proceedings, I need only make a threshold assessment of relevance and reliability based on theissues identified in the litigation, the content of the messages, and their nature. The weight accorded to the text messages will be a matterfor the trial judge to determine. [27] The evidence’s reliability also bears on its prejudicial effect. Evidence has a prejudicial effect when it may be improperly usedby the finder of fact.

For example, this may be because the evidence encourages an emotional reaction, raises a distracting side issue andunduly uses the Court’s time, comes as a surprise to the opposing party, or brings the administration of justice into disrepute.

Theprejudicial effect of evidence may be addressed by appropriate instructions to the trier of fact, including a review of the evidence’sweaknesses. [28] Caution must be exercised in family litigation when considering the probative value of evidence versus its prejudicial effect.Traditionally, in civil matters, where Charter protections do not apply, the rule was “it matters not how you get it; if you steal it even it would be admissible in evidence”: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 6th ed, Lexis Nexis, at para 9.1, citingR v Leathham (1861), 8 Cox C C 498 at 501; principle affm’d in the Canadian family law context in Propp v Propp, 2014 SKCA 5 atpara 41. [29] Canadian courts have, often reluctantly, followed this approach and admitted improperly obtained evidence, includingsurreptitiously recorded conversations between persons involved in family law disputes: see for e.g., Sweeten v Sweeten, (BC SC) (Sweeten); Reddick v Reddick, 1997 CarswellOnt 3477 (Ont Gen Div); BG v BD, 1998 CarswellOnt 4957 (ON Master);DA v DC, 2013 CarswellNfld 301 (NLSC); Dueck v Dueck, 1999 SKQB 178.

In Sweeten, the Master noted that he did “not wish toencourage the practice of surreptitiously obtaining evidence” but he admitted the evidence as it was relevant to the determination of thebest interest of the child: para 18. [30] In U(AJ) v U(GS), 2015 ABQB 6, the Court provided a thorough overview of the law in this area.

Noting that evidence wasoften admitted by resorting to arguments around the best interest of the child, the Court adopted the position of the Ontario Court ofJustice in Hameed v Hameed, 2006 ONCJ 274, which held at paragraph 13 that it is not in the best interests of the child to encouragesurreptitious practices: In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to acttogether in the best interests of the child.

Condoning the secret taping of the other would be destructive to this process. [31] Improperly obtained evidence has been excluded in other cases where it had minimal probative value as compared to itsprejudicial effect, where the judge found that admitting the evidence would bring the administration of justice into disrepute, or wherethere were policy reasons that weighed against admissibility (e.g. a chilling effect on communications between parents and children, as inSC v JC, 2009 SKQB 87; or between doctors and patients, as in Fattali v Fattali, (ON SC)). [32] Prejudice that attaches to the evidence has to be considered both in the context of admitting the evidence and excluding it –and in the context of the parties and the justice system.

In Mathews v Mathews, 2007 BCSC 1825 (Mathews), the Court noted thathighly reliable evidence that reveals pivotal facts cannot be excluded without bringing the administration of justice into disrepute, even ifthe evidence was obtained in a dishonest manner: Mathews at para 56. [33] Recently in Van Ruyven v Van Ruyven, 2021 ONSC 5963, the Court noted that attempts “to admit secretly made recordingsby one parent of another and/or the child/ren has surged from a trickle to a gusher”: para 39.

The Court held that the only way todiscourage this behaviour is to make such recordings presumptively inadmissible, rebuttable only upon proof of misconduct, risk orthreat: para 41. This approach is consistent with the modern case law on the issue, and admissibility principles generally: improperlyobtained evidence is only admitted when the probative value is sufficient to outweigh the odious and prejudicial way in which theevidence was obtained. [34] I have already discussed the ways in which the text messages may assist in determining issues that will impact the bestinterest of the child.

Further, I am particularly mindful that it is not uncommon in family law litigation that one party accuses the other ofhiding assets, being underemployed or otherwise manipulating assets that are subject to division. When these allegations come before theCourt, we ask for evidence and in its absence, we take care not to allow or encourage fishing expeditions by ordering exceptionaldisclosure. Evidence that someone is hiding income or is intentionally underemployed is difficult to come by, especially for a formerspouse. [35] SJ alleges RD is intentionally underemployed or is hiding his true income.

She now has text messages that may support herposition. The text messages are probative. [36] Against the probative value of the text messages, I must balance their prejudicial effect. The prejudice analysis, as described in

Mathews , requires a consideration of the prejudicial effect of both admitting and excluding the evidence. [ 37 ] SJ and potentially, the children, will be prejudiced if the text messages are not admissible. Without this evidence, SJ is likely unable to fully litigate her theory that RD is underemployed and is intentionally hiding his income. [ 38 ] Admitting the messages does not prejudice RD. He is required to pay child and spousal support based on his actual income.

If the text messages lead a court to conclude that he is intentionally underemployed or has been hiding his true income, RD will have to pay support based on his actual or imputed income. This is not a prejudice to him. While SJ’s allegations may not ultimately be proven, it is not possible at this stage to predict whether the avenues of inquiry opened by the text messages will ultimately bear fruit or be a distraction. [ 39 ] In some cases, decisions regarding the admissibility of text messages or recordings have hinged on the reliability of evidence.

Where a party sought to admit only a selection of messages or recordings, without more context, courts have found that the evidence’s reliability was undermined and therefore the risk of prejudice was high. Additionally, in Sylvestre v Sylvestre , 2018 SKQB 105 at paras 22-30 , the Court excluded text messages that had been downloaded into .pdf form using a program called Decipher Text because the technology did not allow the messages to be authenticated and their integrity could not be determined.

All of these concerns are easily addressed here, as SJ has retained the phone and has a complete record of the contents of the phone. The complete record must be provided by SJ to RD through counsel. [ 40 ] I acknowledge that admitting these text messages may give rise to concerns about the administration of justice. Moreover, I am particularly concerned that this decision may encourage these litigants and others to engage in odious behaviour in search of a litigation advantage. I do not condone SJ taking the phone and accessing its contents. RD did not waive his privacy interest in these text messages.

However, the messages may shed light on an issue that is notoriously difficult to resolve. That probative value outweighs SJ’s conduct in this case because of the unique circumstances that led to SJ being in possession of the Cell Phone. VI. Conclusions [ 41 ] I find that the probative value of the messages outweighs their prejudicial effect and that they are therefore admissible at the trial of this matter. It will be up to the trial judge to determine the manner in which the text messages can be used at trial. [ 42 ] The entire record of the downloaded contents of the phone must be provided to counsel for RD.

Further, counsel for RD must be given access to the Cell Phone so that the accuracy of the download can be verified. [ 43 ] The costs for this application will be in the cause. In my view, costs cannot be fully addressed until more is known about the role these text messages may play in the trial of this matter. Heard on the 2 nd day of December, 2022. Dated at the City of Edmonton, Alberta this 15 th day of February, 2023. S. Leonard J.C.K.B.A. Appearances: Ikenna Ulasi for the Applicant Noori Sidhu for the Respondent