Use of Private Recordings in Family Law Proceedings

Audio and video recordings can be a source of reliable and trustworthy evidence. As stated by the Supreme Court of Canada back in 1996, these recordings may be a "silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events."  R. v. Nikolovksi, [1996] 3 S.C.R. 1197 at para. 28 

Given the ease of recording private conversations on our smartphones, courts can expect more litigants attempting to use these recordings in court. There are no bright line rules against the use of private conversations (see Mazur v. Corr, [2004] ABQB 753).

Family lawyers must familiarize themselves with the law surrounding surreptitious recordings to properly advise clients on the gathering and use of this evidence, particularly in high-conflict matters. 

S. 184(1) of the Criminal Code makes it an offence to knowingly intercept a private communication by electronic means, but there is an exception contained in s. 184(2)(a) if one party is consenting to the recording (known as one-party consent intercepting or participant surveillance, see R v. Schlatter, 2020 ONSC 402 at para. 47).

Notwithstanding the legality of recording a conversation that a litigant is a party to, recordings of private conversations of one's family members have been ruled inadmissible in family court proceedings: 

• From Justice Sherr of the Ontario Court of Justice in Hameed v. Hameed, [2006] OJ No 3109 at para. 11: "Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them." [emphasis added]

• Children may be embarrassed and hurt to learn that they were recorded for use in family law proceedings, damaging their relationship to the parent - DeGiorgio v DeGiorgio, 2020 ONSC 1674 at para. 32

• Video and audio recordings can be edited, manipulated, and even faked, raising issues of threshold reliability - DeGiorgio v DeGiorgio, 2020 ONSC 1674 at para. 27

This is not an exhaustive list, and there may be other policy considerations to be weighed, including whether the courts should admit evidence of private communications between married partners (see Shaw v. Shaw, [2008] ONCJ 130 at para. 18).

While public policy considerations generally favour exclusion of surreptitious recordings of family matters, there may be compelling reasons for the court to admit such evidence.

For example, recordings may reveal duplicitous conduct by one party. In the case of AF v. JW, [2013] ONSC 4727 the father introduced a surreptitious recording of the mother acting in a manner that was contradictory to a court order that required her to be supportive of the children's relationship with the father. The recording demonstrated that the mother continued to disparage the father in the children's presence. The court found that she was acting in a manner that was abusive and not in the children's best interest, a central issue in the proceedings. The court admitted the statements, noting at paragraph 56 that the goal of building trust after separation should not be used to mask abusive conduct which violated a court order.

Recordings have also been used in family law trials for the purpose of cross-examination of an expert witness. In D. v. D., 2020 ONSC 7449, Justice Shore permitted one party to introduce a surreptitious recording of a meeting between one of the parties (the father) and an expert witness who had been ordered to produce a s. 30 assessment for the court. This was only for the purpose of cross-examination to demonstrate that the assessor was biased against the father.  It should be noted that the trial judge had no issues with the reliability or authenticity of the recording for reasons stated at paragraph 12.

Conclusion: the ease of recording conversations with smartphones makes it a certainty that family law litigants will continue to record each other in hopes of gaining an advantage in court. In the absence of a compelling reasons to admit the evidence the courts have ruled that these recordings are inadmissible. The strategy of introducing recordings of private conversations into court has the potential to  backfire by demonstrating the willingness of one parent to betray the other parent's trust. When offered for a compelling reason, the recordings must be clear, authentic, and complete to be considered reliable. Fairness also dictates that the opposing party receive the recordings well in advance of any hearing to independently test its reliability.