Q: I live in rural Saskatchewan and I’m sure my spouse is cheating on me. I think he’s having an affair over the internet, but maybe I’m just paranoid. I want to put something on his laptop computer that traces who he’s talking to. Is this legal? What can I do to track his moves?
A: Internet romances have multiplied in the past 10 years. Often they’re innocent flirtations but certainly they can lead to more.
The statistics on extramarital
affairs are staggering. Older research from the 1940s and 1950s (the Kinsey Report) showed that by age 40, half of all men had an extramarital affair. More recent socio-logical research shows that the trends of 50 years ago have continued. The 1980 Hite Report on men’s sexuality showed 72 percent of men married two years or more had affairs; in 1987, Hite’s research with women showed that about 70 percent of women married five years or more did so. Yet more recently, 26 percent of men and women having affairs said they’d found their new interest via the internet. At least 48 percent said they’d been propositioned on the internet.
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Your fears aren’t just paranoia. Statistically, this is a real possibility.
There are several legal issues for you to consider. First, if you find out your spouse is unfaithful, do you want to separate? Interestingly, data tell us that fewer than 10 percent of adults having affairs leave their spouse. Of those who do and marry their lover, 75 percent of those new marriages end in divorce.
I cannot say whether you should stay in the marriage or leave. But you should get counselling and legal assistance so you make an informed decision rather than a quick and emotional one.
Also note that in Canadian law, the person having the affair is not penalized. That is not a factor except in the actual grounds for divorce. He does not automatically lose custody, visitation rights, share of property or have to pay more support just because he is the spouse who is “in the wrong.” This is not a factor for courts, unless that spouse’s conduct somehow has a more direct impact on the children.
You also ask about putting something on his computer to trace his internet visits. There are a number of software programs that do this. Some are simple and just record websites or destinations. Other programs are sophisticated. These spying programs take an image of what’s on his computer screen every time it changes. They record every site, every e-mail and every operation on his computer. They also can record every keystroke made and received, so you can effectively capture and reprint conversations your spouse had in chatrooms and via e-mail.
As to whether you can install it on his computer, that depends who owns it. Is it owned by your husband or his employer? If it belongs to his employer, be careful. The computer and all its programming is generally seen to be the property of that business. While he shouldn’t have any expectation of privacy with his employer, you have no right to alter the computer or to go on it.
If it’s his personally, you can probably install the program. I was unable to find any case law on this point from Canada. However, a 2005 decision from the Florida District Court of Appeals (O’Brien vs. O’Brien) refused to allow a wife to introduce evidence from chat logs that she said proved her husband was having an affair. That decision was grounded in the wording of Florida law and may not apply here, but the concept that a court would exclude such clear and compelling evidence of unfaithfulness is an interesting one.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
