Divorce Lawyers and the Use of Private Investigators

The Divorce Lawyer’s Role in Using Private Investigators

Lawyers as Gatekeepers for Ethical and Legal Use

Divorce lawyers in Ontario have professional obligations under the Rules of Professional Conduct to act with integrity, avoid abuse of process, and ensure that clients do not pursue improper or unlawful tactics. This responsibility extends to the use of private investigators.

Before recommending an investigator, a lawyer will assess:

• Whether the issue is legally relevant to the divorce or parenting dispute
• Whether less intrusive legal tools could achieve the same objective
• Whether the investigation aligns with the client’s best legal interests, not emotional motivations

Ensuring Investigations Comply With Privacy and Evidence Laws

One of the lawyer’s most important roles is ensuring that any investigation complies with Ontario and federal privacy laws, as well as the rules governing admissible evidence in family court.

Divorce lawyers will typically:

• Instruct investigators on lawful observation practices
• Prohibit illegal recordings, electronic monitoring, or account access
• Ensure compliance with privacy legislation and criminal law restrictions
• Anticipate how evidence will be challenged at trial or on motion

Defining Scope, Purpose, and Limits of the Investigation

A well-managed investigation has a clearly defined scope. Divorce lawyers work with investigators to identify exactly what needs to be proven and what falls outside acceptable boundaries.

This includes:

• Clarifying the legal issue (for example, income misrepresentation or parenting compliance)
• Setting time limits and geographic boundaries
• Restricting methods to passive observation and documentation
• Avoiding unnecessary intrusion into unrelated aspects of a spouse’s life

Avoiding Evidence That Could Be Excluded or Backfire

Not all evidence is helpful, even if it appears damaging at first glance. Divorce lawyers must anticipate how judges assess relevance, reliability, and fairness.

Lawyers actively work to avoid:

• Evidence obtained unlawfully or through deception
• Material that is irrelevant to legal issues under Ontario family law
• Evidence that appears vindictive, excessive, or harassing
• Information that could harm a client’s credibility or negotiating position

Common Divorce Situations Where Private Investigators Are Used

Suspected Hidden Income or Undisclosed Employment

One of the most common reasons a divorce lawyer may recommend a private investigator is when there is credible concern that a spouse is hiding income or working while claiming unemployment or underemployment.

This situation often arises where a spouse:

• Operates a cash-based business
• Works “off the books” or as an independent contractor
• Claims reduced income shortly before or during separation
• Continues working in a family business without formal pay

Lifestyle Investigations in Spousal Support Disputes

A private investigator may be used to observe:

• Regular travel, entertainment, or discretionary spending
• Use of luxury vehicles or properties inconsistent with declared income
• Ongoing business activities despite claims of financial hardship

Parenting Concerns Related to Safety or Supervision

Examples include:

• Repeated lack of supervision during parenting time
• Exposure to unsafe individuals or environments
• Breaches of court-ordered parenting schedules
• Non-compliance with supervision or access conditions

Verifying Cohabitation in Support Variation Cases

Private investigators may be asked to verify:

• Shared residence over time
• Regular overnight stays
• Shared routines or household integration

Evidence Private Investigators Can Lawfully Gather

Surveillance in Public Places

Lawful public surveillance may involve:

• Observing arrivals and departures from workplaces or residences
• Documenting attendance at business locations or job sites
• Confirming compliance or non-compliance with court-ordered schedules

Investigators must avoid conduct that could amount to harassment or intimidation. Surveillance is typically limited in duration and scope, and it must remain passive rather than intrusive.

Documentation of Routines and Patterns of Behaviour

This may include:

• Regular work hours inconsistent with claimed unemployment
• Ongoing overnight stays at a particular residence
• Repeated participation in income-generating activities
• Consistent childcare or supervision patterns

Photographs and Video Taken Lawfully

Lawful recording generally requires that:

• Images are captured in public places
• No trespassing or private property intrusion occurs
• No hidden audio recording or interception of private communications takes place

Background and Asset-Related Factual Research

Permissible research may include:

• Reviewing corporate records and business registrations
• Confirming property ownership through public land registries
• Identifying directorships or business interests
• Verifying publicly available professional or licensing information

Evidence Private Investigators Cannot Lawfully Obtain

Audio Recording Private Conversations without Consent

In divorce matters, investigators may not:

• Secretly record conversations between spouses
• Plant listening devices or use hidden microphones
• Intercept phone calls, video calls, or voice messages

Trespassing on Private Property

Investigators cannot:

• Enter a residence or backyard without consent
• Follow someone into secured buildings
• Position themselves on private property to conduct surveillance

Hacking, Impersonation, or Deception

Unlawful conduct includes:

• Posing as a spouse, employer, or government official
• Gaining access to information through false pretences
• Hacking email accounts, cloud storage, or devices
• Using spyware or tracking software without authorization

Accessing Private Digital Accounts or Communications

This includes:

• Email and social media accounts
• Text messages or messaging apps
• Online banking or financial platforms
• Cloud-based storage or shared devices without authorization

How Investigative Evidence Is Used in Ontario Family Court

Supporting Affidavits and Sworn Evidence

Divorce lawyers may also rely on investigative findings to support:

• A party’s own affidavit evidence
• Claims of non-disclosure or misrepresentation
• Requests for financial imputation or enforcement remedies

Use in Motions, Conferences, or Trials

Common procedural uses include:

• Motions: To address urgent issues such as disclosure non-compliance, support adjustments, or enforcement of orders
• Case or settlement conferences: To clarify factual disputes and encourage resolution
• Trials: In more contested cases where credibility or ongoing conduct is in issue

Limits on the Weight Given to Surveillance Evidence

Courts may limit the weight given to investigative evidence where:

• Surveillance covers only brief or selective periods
• The evidence lacks context or explanation
• The conduct observed is legally irrelevant
• The surveillance appears excessive or intrusive

Risks of Using Private Investigators in Divorce

Escalating Conflict between Spouses

In Ontario divorce cases, this escalation can:

• Harden negotiating positions
• Reduce the likelihood of settlement or mediation
• Lead to retaliatory legal strategies
• Increase overall legal costs and court involvement

Divorce lawyers are particularly cautious where ongoing communication and cooperation are required, such as in shared parenting arrangements.

Emotional Impact on Children and Family Members

Risks to children and family members include:

• Heightened anxiety and insecurity
• Exposure to adult conflict and mistrust
• Damage to co-parenting relationships
• Long-term emotional stress

Risk of Evidence Being Excluded or Challenged

Common evidentiary risks include:

• Allegations of privacy violations or harassment
• Questions about relevance or proportionality
• Limited surveillance periods that misrepresent reality
• Credibility challenges to investigator observations

Reputational Consequences if Investigations Become Known

Potential impacts include:

• Damage to professional or business relationships
• Strain on extended family or social circles
• Public embarrassment or stigma
• Long-term reputational harm, especially in high-conflict cases

For professionals, business owners, or public-facing individuals, reputational risk is often a decisive factor in whether investigative measures are appropriate.