Smile: You Are On Candid Camera: Using Surveillance in Family Law

Divorce procedures are complicated as is represented in the following case.

After 15 years of marriage, Chuck and Andrea were separating. Chuck had cheated on Andrea a few years back and, despite years of counselling, Andrea was not able to get past it. So after each retained a lawyer to negotiate a Separation Agreement, Andrea’s lawyer advised that she was seeking spousal support in the sum of $10,000 per month with no end date. Chuck was shocked. Andrea was earning $75,000 per year until she quit her job just before separation. Even though Chuck was a high income earner, they always lived modestly. Chuck argued that Andrea didn’t need any support but, if she did, it was just for a short duration, as Andrea was young enough to go back to work.

What was puzzling to Chuck was that Andrea was steadfastly refusing to return to work, even after they sold their home and moved on. He did not understand what she was doing all day.

In consultation with his lawyer, Chuck decided to hire a private investigator and begin surveillance of Andrea. Within a few weeks, Chuck learned that Andrea was living with her new boyfriend and that Andrea and him were carrying on as a couple, dining out, traveling and even shopping for wedding rings and baby furniture.

This photographic and video evidence changed the strategic plan in this case. At Questioning, Chuck’s lawyer asked Andrea plenty of questions about her daily life, her career plan, her employment plan, her social life and why she needed spousal support from Chuck. This is when Chuck’s lawyer presented Andrea with the results of the surveillance.

Shortly thereafter, the case settled with Chuck paying Andrea a small lump-sum in spousal support in exchange for a release of spousal support.

How can surveillance be used in Family Law?

In Family law, private investigation and surveillance can be used to prove infidelity, new spousal relationships, undisclosed cash income, hidden assets and even poor parenting. The private investigator’s notes, photographs and videos can be used to effectively challenge oral testimony in cross-examination.

Family law disputes are heavily laden with conflicting allegations. Often the judges, and even the lawyers, do not know who to believe. When one parent accuses the other of not using a car seat or leaving the child unattended in the car or taking the child into places that are unsafe for a child, there usually is no independent evidence to allow the lawyers or the judge to solve the problem, especially in the face of denials. Accusations of alcoholism and drug use also are commonplace in cases of divorce procedures in Canada. This is often a very sensitive topic as admitting to this problem will likely result in a loss of parenting time and severe limits placed on the parent/child relationship. On the other hand, without independent evidence, an allegation cannot be proven, or a denial cannot be challenged. Private investigation and surveillance can be very helpful in these cases.

Surveillance has been used for decades in personal injury cases. In fact, it is customary for plaintiff’s counsel to warn their clients that the insurance company or defence counsel may be directing surveillance, so that they should be conscious of their public behaviour. Many slip and fall accidents and MVA’s have been settled with photographic evidence of the so-called injured victim building a deck, roller-blading or playing tennis. However, surveillance is not commonly used in Family law, partly due to the cost, and partly due to the uneasiness of the client spying on their spouse. In personal injury cases, the cost/benefit analysis may justify the expense. Spending $20,000 on private investigation may result in a settlement for a so-called permanent injury being reduced by a multiple of that cost. But in Family law, spouses generally do not have the ability to fund this disbursement. Since the benefits are unknown, clients may be unwilling to incur the cost. Plus, unfavourable surveillance is not only costly, but may need to be produced to the other side.

There are competing opinions as to whether this evidence must always be revealed. According to the case of Arsenault-Armstrong v. Burke, 2013 ONSC 4353 (CanLII), a plaintiff in a personal injury action sought full disclosure of the surveillance evidence. The court stated:

“The surveillance evidence will assist the plaintiff in evaluating the strength of her case and arriving at her settlement position prior to trial. Even if the defendant will not be able to use the surveillance evidence for impeachment purposes, as a result of its non-disclosure, the defence will gain knowledge of the plaintiff from the surveillance evidence which it will be able to use to its benefit. A requirement that the defence produce it even if it does not presently intend to use at trial is consistent with what the Court of Appeal said in Ceci v. Bank 1992 CanLII 7596.”

In Family law, there is no obligation to provide an Affidavit Listing Documents unless sought by one party. Thus, it may not always be possible for a party to be aware of the existence of surveillance evidence (usually listed in Schedule B). Time will tell if such a disclosure obligation applies to Family law as well.