Non-disclosure is consistently an issue for family law litigants who are going through a divorce. It can hinder the proper payment of spousal or child support, and the courts have recognized that it can be especially difficult for a recipient party to obtain information from the payor who is hiding assets or is not disclosing all of their income. 

In some cases, a recipient seeking to prove hidden income or assets may need to rely on evidence that raises questions of admissibility. This was the issue in the recent Alberta court decision, SJD v. RDP, 2023 ABKB 84. The mother was seeking to establish that the father was hiding income and was intentionally underemployed to avoid his support obligations. She sought to admit evidence of the father’s text messages on his phone that supported her position. In this post, we will discuss the SJD case to explain how the court came to its decision to admit the text messages as evidence, which involved balancing a number of important principles in family law proceedings. 

Mother Came In Possession of Father’s Phone In Their Joint Vehicle

The SJD case involved a common-law relationship of 20 years. The parties had two children. The issues involved child and spousal support

During the relationship, the parties purchased a truck. The loan was in both their names, but the vehicle registration involved conflicting information. At first, the truck was registered in both their names, but the father’s position was that the truck was now registered solely in his name. When payments were not being made, the bank sought to repossess the truck. At that time, the father was out of town, so the bank asked for the mother’s assistance to locate the truck. Eventually, the bank found the truck, and the mother asked for its location. 

Then, the mother was contacted by a bailiff, who advised of the truck’s location. The bailiff also informed her that the truck would be seized the following day and the bailiff would serve her with the documents. They arranged for the mother to arrive at the truck’s location so the bailiff could serve her with the documents. 

The mother noted that there were personal items in the vehicle, which included her own personal belongings. The bailiff informed her that the items would be disposed of. The bailiff permitted the mother to access the items in the truck using her key. She obtained the personal items in the truck, which included the father’s cell phone. 

The father’s position was that before the truck was seized, he had arranged with the bailiff to collect his personal belongings from the truck when he returned from work in the following week or two. The truck was at the father’s niece’s residence, who informed him that the mother was at a seizure. The father then emailed the mother that she would not remove any items from the truck. The mother’s position was that she removed the items before receiving the messages from the father but did receive the messages after she left. 

The mother then accessed the text messages on the father’s phone using a program to download the messages as PDFs. She was seeking to admit 37 pages of messages at trial.

The father’s position was that the text messages should not be admitted as the mother had improperly obtained them, and they included private messages between him and third parties. 

Text Messages Not Inadmissible for Privacy Breach 

While the court recognized that the father had a privacy interest in the text messages, the mother’s conduct did not rise to the level of being “highly offensive” to warrant the court’s intervention. 

The court found that the mother violated the father’s privacy interests, as she was aware that this was the father’s cell phone and knew that he did not want her to have access to the phone’s contents, as they were contentious family litigation. 

The court looked at previous case law involving “intrusion upon seclusion” to make its decision. The court found that the other cases involved more egregious circumstances, where there was an intentional intrusion on private affairs or some sort of invasion of privacy involving an abuse of power. SJD did not involve the same level of intrusion to allow the court to intervene. The father left the cell phone in the truck that was being repossessed. He also deactivated that cell phone and obtained a new one. Also, the mother was jointly responsible for the truck and had a key to access the truck. There was also no evidence that she knew that the cell phone was in the truck before she arrived at the truck’s location. She was also unaware that the father had arranged to pick up his belongings on a separate occasion with the bailiffs. 

Therefore, while the father’s privacy interests were violated, it was not enough to consider the cell phone’s text messages to be inadmissible, given the circumstances of how the mother obtained them. 

Court Weighs Admissibility, Finding It Is More Helpful Than Prejudicial 

The court found that the text messages are relevant, as they directly involve the mother’s position that the father has not fully disclosed his income to limit his support obligations. The messages were between the father and his new partner. In the messages, the father indicated that he arranged to reduce Line 150 on his tax return with his employer. In the messages, he also suggested he would set up a company overseas to hide his income, that he could secure paid employment with one phone call, and that he intentionally arranged for the bank to foreclose on the family home. 

As these messages would impact the father’s income determination, which would impact support amounts, it was relevant information for determining the children’s best interests. 

Despite this, the court cautioned that while a party accusing the other of hiding assets and income is asked to provide evidence, the court does not allow or encourage fishing expeditions that involve ordering exceptional disclosure. 

Ultimately, the court found that the value of admitting the text messages was more probative (i.e. helpful in assisting the court) than prejudicial. The court also noted that if the text messages were not admitted, it would prejudice the children, as the mother would have difficulty finding other evidence that the father was underemployed and hiding his income. The court also noted that admitting the text message would not prejudice the father, as he is obligated to pay child and spousal support on his true or imputed income. 

In summary, the court came to its conclusion after balancing the following key factors:

“[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 [the mother] taking the phone and accessing its contents. [The father] 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 [the mother’s] conduct in this case because of the unique circumstances that led to [the mother] being in possession of the Cell Phone.”

Mincher Koeman Family Lawyers Can Assist With Cases Involving Non-Disclosure

A significant challenge in divorce cases is non-disclosure, which creates difficulties in determining the payor’s income for child support and spousal support. There may be evidentiary issues, including when certain evidence can be admitted, which depend on the case’s unique circumstances. Our family law lawyers at Mincher Koeman are experienced in cases involving hidden assets and non-disclosure and can assist you in developing a strategy for your case. Our Calgary family law lawyers are dedicated to finding the best resolution for your divorce case. To book a consultation, please contact us online or by phone at 403-910-3000.

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