In Howell, McDonnell v. Freire, Aviva Insurance, Echelon Insurance, 2024 ONSC 586, the Court considered whether the time, expense, prejudice and volume of documents contained in months of private electronic messages between alleged spouses ought to be produced to determine if the plaintiff’s action was properly commenced pursuant to the Family Law Act, R.S.O. 1990, c. F.3. (“the Family Law Act”).
The plaintiff commenced an action pursuant to the Family Law Act arising from the death of his alleged spouse, who was killed in a motor vehicle accident. The plaintiff commenced his claim on the basis that he and the deceased were spouses at the time of his death.
At the examinations for discovery, the plaintiff was asked to produce all electronic communications that were sent by text message, email, WhatsApp and Snapchat between himself and the deceased from the inception of their relationship to the date of death. The question was eventually refused.
The defendant brought a motion for an Order to provide answers to questions improperly refused at the examination for discovery. The defendant ultimately sought the electronic communications for the five month period between December 2016 and May 2017, during which time the pair seemingly did not have a permanent residence.
At the examinations for discovery, the plaintiff provided evidence as to his living circumstances with the deceased. During early points in their relationship, the pair moved back and forth between two residences. Eventually, they moved into a home with a roommate where they lived from August 1, 2018 until the date of the accident.
In addition to the plaintiff’s discovery evidence, various cohabitation documentation was provided including jointly signed tenancy agreements, letters from their previous landlords and income tax returns, which listed one another as common-law spouses. The plaintiff was also described as the deceased’s husband at the criminal trial of the defendant.
The issue on the motion was whether the plaintiff should be required to produce private electronic messages exchanged between himself and the deceased between December 2016 and May 2017.
POSITIONS OF THE PARTIES
The defendant sought the electronic communications to confirm the date that the plaintiff and the deceased formed an intention to cohabit, in order to substantiate that they were spouses.
The plaintiff argued that, in consideration of the factors under Rule 29.2.03, the time and expense of producing these documents would be considerable, and the volume overwhelming. Further, the plaintiff submitted that it would be prejudicial to the plaintiff as the messages were all sent with an expectation of privacy and that the exercise would impose emotional trauma.
Justice Healey reviewed the definition of “spouse” pursuant to the Family Law Act, which provides that:
…“spouse” means a spouse as defined in subsection 1(1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years…
Justice Healey also reviewed Rule 29.2.03 (2) (a) and (b) and Rule 29.2.03 (2) of the Rules of Civil Procedure, which provide that in making a determination as to whether a party must produce a document, the Court shall consider the time and expense associated with production, and whether the document would cause prejudice. In addition, the Court shall consider whether such an Order would result in an excessive volume of documents.
Her Honour determined that even limiting the time frame to 5 months would result in a large volume of messages. She wrote that absolute evidence was not needed to establish the cohabitation element required by the Family Law Act, and that lack of a shared residence is not determinative of the issue of cohabitation.
In this case, there was already ample evidence that there were two residences that were sites of cohabitation more than 3 years prior to the accident. The pair were also treated as a couple in all respects by family and friends. As such, the time and expense that would ensue from ordering production was not justified in the face of the law on cohabitation and, given the other evidence presented, the content would have limited probative value.
In addition, Justice Healey agreed that there would be “enormous” prejudice to the plaintiff in producing such private and intimate messages. The communications between two partners carries an extremely high expectation of privacy on platforms that are designed to be private.
While a plaintiff must be prepared to bear upsetting moments while pursing a lawsuit, Justice Healey stated that what was being asked was “shockingly intrusive”, and the idea of allowing other litigants and lawyers to read through such evidence in the plaintiff’s private life would be impossible to justify in the circumstances of the case.
A proper weighing of the factors in Rule 29.2.03 were such that any potentially probative value of the messages would be far outweighed by the cost, time and prejudice that would occur should the messages be produced.
$18,000 in costs on a substantial indemnity basis were awarded to the plaintiff.
An extremely high expectation of privacy exists when seeking production of private messages between two intimate parties. In considering whether production of such documents is warranted, counsel ought to consider the anticipated probative value of the messages and the quantum of the production request in the context of the case and the other evidence already available. In circumstances where production is sought, parties should also consider the nature of the electronic platform, as applications such as Snapchat, Whatsapp and text messages will have a higher expectation of privacy than a Facebook post.
 Stephen v. Stawecki, 2006 CanLII 20255 ( ON CA).
 Climans v. Latner, 2020 ONCA 554