Divorce Surveillance Laws in Ontario: A PI's Guide

Ontario law has no special “divorce exception” to Canada’s surveillance and privacy statutes. The same Criminal Code interception rules that bind strangers apply once two spouses separate. Divorce surveillance laws in Ontario also draw on the Divorce Act and the province’s PSISA licensing statute.

This guide walks through where the legal line sits. It covers what’s lawful to record or track alone. It covers where that shades into a criminal offence. It explains the mistakes divorcing spouses most often make gathering their own proof. It explains why family lawyers steer clients toward a licensed investigator instead. It explains how a licensed surveillance file gets built. It closes with what Ontario family courts actually do with secretly recorded evidence.

What ‘surveillance’ means when you’re the one going through an Ontario divorce

For someone going through an Ontario divorce, “surveillance” is not one activity. It covers several legally distinct things: audio recording of a conversation, physical or photographic observation, GPS tracking of a vehicle, and reviewing a spouse’s private messages or accounts. Each one sits under a different Criminal Code provision. Interception falls under Section 184. Mischief falls under Section 430. Unauthorized computer use falls under Section 342.1. None of them is one single “spying” offence.

That taxonomy covers what a spouse might do personally. It does not cover investigative work performed by someone else, on a spouse’s behalf, for a fee. Paid investigative services in Ontario are governed by the Private Security and Investigative Services Act, 2005 (PSISA). PSISA sets out who may lawfully be paid to conduct that work, and under what licensing conditions. This guide addresses both: what a spouse can lawfully do alone, and where a licensed investigator’s authority differs. That distinction matters before a single photo or recording gets gathered.

The legal line between watching your own spouse and breaking the law

Criminal law draws this line, not marital status or how the marriage is ending. The exceptions and tests below define what a spouse can do alone, without crossing into an offence.

• Recording your own conversation. Section 184(2)(a) of the Criminal Code lets a person lawfully record a private communication they’re part of. That covers being the originator, or the intended recipient. It does not cover a conversation between a spouse and someone else, where the recording spouse isn’t a party to it.
• Covert observation generally. The Office of the Privacy Commissioner’s guidance on covert video surveillance sets a four-part test: a demonstrable evidentiary need, clear relevance, proportionality between the intrusion and the benefit, and no less invasive alternative. The test has no built-in exception for spouses. Investigators who skip this test risk producing material a judge later discounts entirely.
• No blanket spousal exception. Canadian law grants no blanket “spousal exception” to surveillance and privacy rules. GPS-tracking a vehicle you don’t solely own can amount to criminal mischief, carrying up to ten years on indictment. R. v. Jarvis, 2019 SCC 10 established that even a semi-public setting doesn’t automatically erase a reasonable expectation of privacy. The full breakdown lives in the spousal surveillance laws in Canada research guide.

The most common ways divorcing spouses accidentally break the law trying to catch a partner

These are the mistakes that turn a divorcing spouse’s own evidence-gathering into a criminal or civil liability problem, often without the spouse realizing it until a lawyer or a process server gets involved.

• Installing a GPS tracker on a shared vehicle. Placing a tracker on a vehicle a spouse doesn’t solely own or control can constitute mischief under Section 430(1)(c)-(d) of the Criminal Code. That section covers obstructing or interfering with another person’s lawful use of property. It becomes an indictable offence once the interference is significant.
• Planting a recording device. Leaving a recorder running in a room after leaving it, or recording a call between the other spouse and someone else, falls outside the one-party-consent exception in Section 184(2)(a). It falls back into the general interception offence under Section 184(1).
• Logging into a spouse’s private accounts. Using a spouse’s password to access their email, social media, or phone without authorization can constitute unauthorized use of a computer service under Section 342.1 of the Criminal Code. That’s an indictable offence carrying up to ten years’ imprisonment. The marital relationship between the parties doesn’t change that.
• Following or watching after being asked to stop. Repeatedly following a spouse, or watching the home or workplace where they live or work, are both listed as prohibited conduct under Section 264(2) of the Criminal Code’s criminal harassment offence. The conduct becomes criminal once it causes the other person to reasonably fear for their safety. Even conduct that begins as evidence-gathering can cross into harassment once it’s unwanted and repeated.

Why divorce lawyers tell clients to stop investigating and call a licensed PI instead

Under Section 6 of Ontario’s PSISA, no person may act as a private investigator for a fee without a licence. That includes performing investigative services for someone else, even informally. Section 45(1) sets penalties for a contravention at up to $25,000 and one year’s imprisonment for an individual. A corporation faces up to $250,000. A spouse who quietly hires an unlicensed “investigator,” or asks a friend with a camera to help, exposes both parties to that penalty framework.

The reason lawyers steer clients away from DIY monitoring isn’t just the criminal exposure. The Office of the Privacy Commissioner’s covert-surveillance guidance sets a standard: evidentiary need, relevance, proportionality, and least-invasive alternative. Licensed investigators are trained to apply that standard before undertaking any covert observation. Ad hoc monitoring that skips the analysis produces material a court may give little weight, or exclude outright, regardless of what it shows.

Family lawyers see the same pattern repeatedly. A client under stress installs a tracker, records a call, or logs into an account, hoping to shortcut the process. Instead of strengthening their case, the client creates a new legal problem their own lawyer now has to manage alongside the divorce itself. That’s the practical reason many family lawyers raise surveillance in their first meeting with a new client.

How a licensed divorce surveillance investigation actually unfolds, step by step

A licensed investigation follows a structured process. That process doesn’t apply to a spouse acting alone.

1. Intake and scope-of-work agreement. The investigator and the retaining client, often working through family law counsel, define what’s being investigated and why. This happens before any observation begins. Most investigations start only after a client has already spoken with family law counsel.
2. Licensing and regulatory framework check. A PSISA-licensed investigator operates under both the licensing conditions of the Act and its Code of Conduct, set out in Ontario Regulation 363/07. That framework doesn’t apply to a spouse conducting surveillance alone.
3. Field observation from public vantage points. The investigator documents activity using time-stamped observation logs. Photographic or video media is gathered lawfully from public or plainly visible positions.
4. Chain-of-custody documentation. Raw media and logs are preserved and tied to the investigator’s identity and licence status. That preservation is what lets the finished file be reviewed by counsel.
5. Delivery of a signed report. The completed file is delivered as a signed report tying the media to the investigator’s direct observations. It’s formatted for review by the client’s family law counsel and, where necessary, entered as evidence.

Every stage above assumes the investigator holds an active PSISA licence and follows the regulator’s Code of Conduct throughout. The field mechanics of following a subject through public spaces, rather than the surveillance file itself, are covered separately in Mobile Surveillance in Ontario: A Licensed PI’s Guide.

Does it actually help your case? What Ontario courts do with secretly recorded evidence

In Sordi v. Sordi, 2011 ONCA 665, the Ontario Court of Appeal upheld a trial judge’s discretion. The judge could exclude, or give little weight to, surreptitiously recorded conversations in a family law proceeding. The court treated the question case by case. It weighed the evidence’s probative value against its presumptive prejudicial effect. That’s not a blanket rule of admissibility or exclusion. A secret recording gathered during a marriage breaking down isn’t an automatic trump card once it reaches a judge.

Before any of that weighing happens, the material has to clear a procedural gate. Ontario’s Family Law Rules, O. Reg. 114/99, made under the Courts of Justice Act, govern disclosure and evidentiary procedure. Surveillance material has to go through that procedure before it reaches a family court judge. That applies whether a spouse gathered it or a licensed investigator did. Recordings collected in a way that breaches the Criminal Code carry an added risk of exclusion, on top of whatever weight the court would otherwise give them.

Courts apply the same weighing exercise regardless of who did the recording. A licensed investigator’s report isn’t automatically admitted either. It still has to satisfy the same disclosure rules and evidentiary tests as anything else put before the judge. This analysis is specific to Ontario family proceedings; criminal and civil courts weigh secretly recorded evidence under their own rules.

What this means if you’re weighing surveillance in your own Ontario divorce

Where children are involved, evidence gathered during a divorce can feed into a parenting order. Section 16 of the Divorce Act directs the court to consider only the best interests of the child. The court weighs factors like the history of care and the impact of family conflict. It doesn’t weigh which spouse produced the most damaging surveillance material, and that standard applies whichever parent initiated the surveillance.

As licensed PSISA investigators in Ontario, our standing advice to clients weighing DIY surveillance during a divorce matches what their family lawyer usually says first: stop gathering evidence personally, and have a licensed investigator take over. That’s before an impulsive GPS tracker or recorded call turns from a potential source of proof into a source of criminal or civil liability. To discuss whether a licensed divorce surveillance investigation fits your situation, call +1 (888) 680-0036 or visit our divorce investigations page. James Glanville’s background as the firm’s principal investigator is detailed on his profile page.

This guide is general legal information, not legal advice, and the law can change or apply differently to your specific circumstances. Speak with a family lawyer before acting on anything above.

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