Law360 Canada (August 11, 2026, 9:37 AM EDT) --

Hodine Williams

The modern spouse who scrolls through a partner’s phone at 2 a.m. isn’t usually pondering the finer points of the Criminal Code. They are thinking of one thing: “I need to know the truth.”

Suspicion is a powerful intoxicant, and when trust begins to fray, the answers seem to sit just inches away, protected only by a four-digit code. But the digital age has created a dangerous illusion: because information is easy to access, we assume it is legally available. It is not. In fact, the digital detective often ends up as the defendant.

When curiosity crosses into criminality

While there is no specific “snooping” offence, the Criminal Code provides several sharp teeth for those who overstep. The difference between curiosity and criminality often comes down to the method. Reading a notification on a shared iPad is one thing; secretly installing software to monitor communications is quite another. Section 184 of the Criminal Code, R.S.C. 1985, c. C-46 makes it an offence to knowingly intercept a private communication without the consent of the originator or intended recipient.

A common misunderstanding arises from Canada’s “one-party consent” rule. While it’s true that you can record a conversation you are part of without telling the other person, this rule is not a blank cheque for marital surveillance. It does not mean you can record your spouse’s calls with their lawyer, their doctor or their lover. If you aren’t a participant, you are an outsider “intercepting” a private communication — a distinction that can transform a personal investigation into a potential criminal record.

The spyware trap and unauthorized access

The most extreme form of digital snooping involves spyware or keyloggers. Under s. 342.1 of the Criminal Code, unauthorized use of computer systems is a serious matter. A person who installs monitoring software is no longer “checking a phone”; they are engaging in deliberate digital surveillance.

Imagine installing a hidden camera in a bedroom; most people recognize the gravity of that act. Spyware is the digital equivalent, capturing passwords, recording messages and providing a continuous window into a private world. The technology may be invisible, but the intrusion is profound — and the law provides no spousal immunity for such conduct.

The irony of the ‘smoking gun’

Many snoops believe they are gathering a “smoking gun” that will secure their victory in family court. They imagine the judge’s shock at the revealed infidelity. But Ontario operates under a “no-fault” divorce system. Infidelity may be emotionally devastating, but it generally does not shift the dial on property division or support. The real irony is that the method used to obtain the information often matters more than the information itself.

In family proceedings, the court may exclude evidence obtained through illegal means or question the credibility of the person who obtained it. As we saw in Chen v. Huang, 2024 ONSC 1173, where an estranged husband accessed his wife’s private emails from a shared computer, the court was quick to declare the intrusion a violation of privacy that “will not be tolerated.” Someone looking for a smoking gun often ends up being the one holding it, facing a claim for damages or a judge’s stern rebuke.

The ‘best interests’ loophole and innocent bystanders

There is a narrow exception: the safety of children. Auciello v. Auciello, 2023 ONSC 2266 is an Ontario family law decision in a high-conflict divorce matter where Justice John McDermot ruled on the admissibility of secretly recorded conversations. The court allowed the recordings into evidence because they addressed the child’s best interests and had enough reliable value. But this is not a loophole for general snooping. The court carefully examines whether the central concern was truly the child’s welfare or merely gaining a tactical advantage in litigation.

Perhaps the most overlooked aspect of phone snooping is the collateral damage. A smartphone is not a diary; it’s a room filled with hundreds of private conversations. When you search a spouse’s phone, you are also reading the secrets of their friends, the family crises of their siblings and the confidential advice of their doctor.

None of these third parties consented to becoming part of your relationship drama. That is why the law treats digital privacy with such seriousness — not because phones are sacred, but because the people on both ends of the conversation are.

The ethics of third-party communications: It’s not just about your spouse

When you secretly search your partner’s phone, you are not merely invading their privacy. You are invading the privacy of every friend, colleague, client, therapist, accountant, physician, pastor or employer who ever believed they were communicating with one person, not with that person’s suspicious spouse peering over their shoulder. Imagine sending your closest friend a deeply personal message about depression, infertility, addiction, a difficult pregnancy, a family crisis or an abusive relationship. You pressed “send” because you trusted your friend. You did not consent to their partner reading every word over coffee on a Sunday morning.

The privacy interest does not belong solely to the owner of the phone. Every conversation involves at least two people, sometimes many more. That is what makes digital snooping fundamentally different from opening a drawer or reading a forgotten letter. An invasion of one person’s privacy is an invasion of everyone else’s as well.

Protecting your digital boundaries: Practical advice

If you suspect your partner is snooping, or if you’re tempted to snoop yourself, here’s some practical advice that doesn’t involve becoming a legal scholar:

• Seek legal advice (the right way): If you genuinely believe you need evidence of your spouse’s behaviour (e.g., infidelity, hidden assets), consult with an experienced family lawyer. They can guide you on lawful and admissible methods of gathering information, such as through formal “Discovery” processes. This is the legal, boring and safe way to get records.
• Secure your own devices: If you suspect you are being tracked, change your passwords immediately. Enable two-factor authentication on all accounts. Review app permissions and location services. Check for unfamiliar apps or “Find My” permissions you didn’t grant. Consider a factory reset if you suspect spyware. Consult with a divorce lawyer or privacy expert to ensure your personal information is safe.
• Communicate (if safe to do so): In a healthy relationship, concerns about trust and fidelity should be addressed through open communication, not covert surveillance. If communication is no longer possible or safe, seek professional help.
• Remember the Golden Rule: If you wouldn’t want a judge reading your search history in open court, don’t go digging through someone else’s.

The final verdict: Trust is not a password

The law’s advice is surprisingly simple: if you need evidence, do not become the evidence. Family law provides robust mechanisms for disclosure and discovery that allow you to obtain relevant information through the proper, albeit slower, legal channels. This protects you from having to explain your own misconduct in court.

At the heart of most phone investigations is fear — fear that the life you built is a lie. But the law draws a firm boundary: suspicion does not create permission, and love does not cancel privacy. The great irony of digital snooping is that you go looking for a secret and discover something else entirely: that the law is concerned not just with what you found, but with the fact that you went looking.

It shouldn’t be hard to understand why: it is a disgusting act to access someone’s phone without their permission, thus breaching trust and privacy, including things other persons sent in confidence to your spouse and things not meant for your eyes. Your action is also a betrayal and the ends do not justify the means.

When love requires surveillance, trust has already left the room. And if a relationship requires a search warrant to feel secure, it has already become its own crime scene.

Well, that’s my view on it.

This is part two of a two-part series. Part one: The password was shared; the privacy was not: The legal perils of spousal snooping.

Hodine Williams has over 20 years of experience in law, corporate governance and regulatory compliance across the legal, financial, hospitality and engineering sectors. Hodine is a partner at Augustine Williams Law Professional Corporation. He is a former prosecutor and expert in digital forensics, financial crimes and cyber law, and has advised corporations in Jamaica, Canada and the United Kingdom. Holding a master of laws in international business law from Osgoode Hall Law School, along with degrees in management and economics and law, Hodine is also an educator, philanthropist and is a youth and human rights advocate. You can reach him at hodine.williams@gmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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