Spousal Privilege: ‘Til Litigation Do Us Part

For spouses who find themselves named as co-defendants, a recent decision of the Ontario Superior Court of Justice is a warning about the limits of spousal privilege.  A convenient plot device in law dramas such as Law and Order, spousal privilege protects spouses from disclosing communications between them.  However, in Ontario, that privilege is limited and likely of no practical effect when both spouses are defendants in commercial litigation.

In Wendy Sokoloff Professional Corp. v. Chorney, 2025 ONSC 5613 (“Sokoloff”), the Court offered important guidance on the scope of spousal privilege in the commercial litigation context, confirming that it operates as a limited exception to the general rule that spouses are competent to testify against one another.

Over Thanksgiving weekend in 2021, a lawyer at the Brampton office of a Toronto-based personal injury law firm, Sokoloff Lawyers, took over the practice. Savannah Chorney (“Savannah”), an associate at Sokoloff Lawyers, advised the other employees that the office would be closing midday on Friday, October 8. She then instructed the employees to leave their computers unlocked. Once the premises had been vacated, Savannah arranged for the “Sokoloff Lawyers” sign to be removed and for the locks to be changed.

Savannah advised Wendy Sokoloff, the firm’s namesake, that she and the other employees had resigned and would be starting their own firm out of the same office.

Sokoloff Lawyers then commenced an action against Savannah and several other employees. Savannah’s spouse, Nicole Chorney (“Nicole”), was the office manager and named as a defendant.

Savannah and Nicole refused to produce relevant documents in their affidavits of documents that they asserted were subject to spousal privilege. During their examinations for discovery, they both refused to answer certain questions on the same basis.

Sokoloff therefore turned on the scope of spousal privilege, and whether Savannah and Nicole were justified in invoking it. Section 11 of the Evidence Act (Ontario) (the “Act”) provides that “a person is not compellable to disclose any communication made to the person by his or her spouse during the marriage.”

Based on a plain reading of the text, the judge found that section 11 of the Act only protects communications made to a spouse during the marriage, not communications made by a spouse. The result is that a spouse is required to produce and give evidence about all their communications to their spouse, but cannot be compelled to produce documents or give evidence about communications their spouse made to them.  Effectively, by suing both spouses, the plaintiff could obtain disclosure of and question about all of the communications between them.

The defendants argued that section 11 should be interpreted to protect all spousal communications regardless whether the spouse was the recipient or the sender of the communication.  The defendants also argued that the Court’s interpretation was contrary to the underlying policy of protecting marital confidences.

The judge observed that section 11 of the Act changed the former common law principle that spouses were not competent to testify against one another and substituted a more limited privilege. Any expansion of the privilege beyond the clear words of the statute should be left to the legislature.

As a result, the judge ordered Savannah and Nicole to deliver supplementary affidavits of documents. While each of the spouses was entitled to redact text messages and emails received from the other spouse, when viewed together, all communications between Savannah and Nicole would be disclosed.

Overall, Sokoloff clearly signals that spousal privilege, while preserved in statute, will not shield spouses from meaningful disclosure obligations in the commercial litigation context when both are defendants.  Effectively, all relevant communications between them will need to be produced and they can be questioned about those communications.  Alas, yet another demonstration that the law, in reality, does not provide the convenient plot devices we expect from our legal dramas.