Surreptitious recordings in family law may be legal, but are not always admissible
Surreptitiously recording a spouse, partner, or children during a family dispute may be legal in Canada, but it is not always admissible in court.
Last month, the B.C. Supreme Court grappled with the complexities of utilizing secretly obtained sound recordings in a divorce proceeding, as a claimant submitted nearly 30 audio files as evidence. The recordings were created using an iPhone or iPad in most cases without the knowledge of the respondent.
“The practice of secretly recording a party for use in a family law proceeding has been repeatedly described as odious and one that ought to be discouraged,” said Justice J. Hughes in the reasons for judgement.
However, the judge allowed some of the recordings to be admitted, noting that they are not “presumptively inadmissible.”
“Circumstances may arise in which the probative value of the surreptitious recording outweighs the prejudicial effect of its admission,” the judge added, noting several B.C. Supreme Court decisions, including Karringten v. Morrisonn, 2023 BCSC 570 at para. 69.
While the judge noted that some of the recordings seemed staged, the ultimate weight of the audio recording evidence would be considered at trial.
COURT CONSIDERATION IN FAMILY LAW CASES
In dealing with surreptitiously recorded audio, the courts generally consider several factors. The evidence must be relevant, the participants must be accurately identified, and the recordings must be unaltered.
A court also must decide whether the evidence’s usefulness outweighs its potential to unfairly influence the court.
UNINTENDED CONSEQUENCES
Surreptitious recordings can at times produce unintended consequences for the recorder.
In a 2022 case in Ontario involving a child custody dispute, a judge was critical of the parents for their constant pursuit of secretly recorded audio of each other.
“It is clear that these parents have become so obsessed with gathering damaging evidence against one another that they have lost track of the devastating consequences of their actions on the child,” the judge said in the reasons for judgement.
“The adults were so busy arguing and screaming at each other that they didn’t seem to hear the boy say something that should have been obvious. ‘I’m scared’. That, I heard loud and clear.”
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