Written by: Naa Lansana
Case Comment – Moran v Moran, 2023 ONSC 6832
Disclosure is a fundamental requirement underpinning determination of family law matters. Where disclosure is incomplete or missing, it makes the resolution of oft difficult matters gravely challenging. As articulated by the court in Cunha v. Cunha1.
Non-disclosure of assets is the cancer of matrimonial property litigation. It discourages settlement or promotes settlements which are inadequate. It increases the time and expense of litigation. The prolonged stress of unnecessary battle may lead weary and drained women simply to give up and walk away with only a share of the assets they know about, taking with them the bitter aftertaste of a reasonably-based suspicion that justice was not done2.
However, one litigant learned that it matters how that disclosure is obtained. In Moran v Moran3, the Applicant decided to take matters into her hands with serious negative consequences for her. This case serves as a reminder, that while the need for financial disclosure in family law is crucial, it does not trump the requirement to adhere to confidentiality and privilege considerations.
In this case, the Applicant wife and Respondent husband (the “Parties”) were married for 25 years and separated in 2020. The Parties’ matter was before the court with both seeking various relief. Among that being sought by the Applicant was that the Respondent respond to outstanding disclosure.
The Applicant, however, made the decision to advance the matter by resorting to unauthorized securing of the disclosure without the Respondent’s consent. Despite being separated and living apart, the Applicant entered the matrimonial home, where the Respondent had de facto exclusive possession (as the Applicant had moved out), and surreptitiously made copies of the Respondent’s private computer files, documents, email and text correspondence.
The Respondent subsequently went on a motion to compel the Applicant to produce all computers she utilized in downloading the Respondent’s information. This was so that a third-party forensic investigator could undertake a comprehensive audit of all materials obtained by the Applicant, inclusive of those she viewed, erased, removed and/or passed on to her legal team.
The court ruled that the forensic audit is necessary to determine precisely the materials that were accessed by the Applicant. There was no dispute as to whether she had indeed surreptitiously obtained the materials at hand, as by her own admission during questioning, the Applicant had obtained the materials from the Respondent’s computer two years after the Parties separated. The Respondent’s expectation was that his confidential information kept on his computer in the home he had been residing in since March 2021 would be out of bounds. However, a number of those confidential materials found their way to his Questioning, put to him by the Applicant’s counsel. As well, the Applicant attached a selection with her materials filed with the court. Despite the Applicant indicating that she did not read any materials that would be classified as being solicitor-client privileged, her answers during Questioning belied that assertion.
Ultimately, Justice Kraft ordered, among other relief, that the Applicant hand over her devices used in extracting the Respondent’s electronic materials to a third-party expert for a forensic audit, that she provide the identity and contact information for any third-party who was in receipt of the surreptitiously obtained information, and that she pay the upfront cost of the audit subject to reapportionment during trial.
The Applicant’s rationale for surreptitiously accessing the Respondent’s information was that the latter had evaded his financial disclosure obligations. The Applicant is quoted as stating, “[b]ut for me accessing this information, I would have had no other way of proving it.”4
The Applicant took an ill-advised risk in an attempt to tackle the lack of financial disclosure in her family law matter. Whether or not she was correct in her assessment that her method was the only viable way to obtain the disclosure, she discovered, by the court’s ruling, that more important than the provision of financial disclosure, is how that disclosure is obtained and brought to the attention of the court in the first place.
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1 1994 CarswellBC 509.
2 Ibid at para 9.
3 2023 ONSC 6832.
4 Ibid at para 10 (f).
