As family law litigants navigate the court system, often one of the most difficult tasks is gathering the necessary and relevant evidence to prove their case. With recording devices easily accessible on cell phones and laptops, and the way in which our appearance on camera has been normalized on various virtual platforms, a tempting strategy may be to secretly record a former spouse in an effort to generate this evidence. Many litigants believe that this practice will help the judge uncover the truth and ultimately cause the judge to decide in their favour. But is this true?
Secret recordings, formally known as surreptitious recordings, are strongly discouraged by judges. The practice has been referred to as “odious” and destructive to the process of rebuilding trust in family law cases. Notwithstanding the general policy against secret recordings, there are circumstances in which they may be admitted into evidence.
This dilemma was squarely before the court in Auciello v Auciello, 2023 ONSC 2266. The mother was seeking to admit private recordings of the father's interactions with the child. The father disputed their admission. The parties and their two children had been living under the same roof with the father in the basement and the mother in the upstairs portion of the home. The mother began recording the father and child, without their knowledge, after she heard the child crying through the basement door and loud noises.
In the recordings, the child had wanted to go upstairs to do her homework in the mother's portion of the home but the father was trying to maintain what he perceived as his parenting time. He told the child that the mother would use her going upstairs to do her homework against him in court. It also showed the father frequently using obscenities in front of the child.
Justice McDermot considered the policy reasons against the admission of the recordings and reiterated that the obvious prejudice, both to the party being recorded and to public policy grounds, must be set off against the probative value of the communications. Justice McDermot opined that this has been set out in several different ways under the case law, and notably in A.F. v B.J.A., 2017 ONCJ 108, where the court suggested that secret recordings were admissible where they directly addressed the best interests of the children involved in the case.
Justice McDermot found that the secretly recorded conversations addressed the child's bests interests and contained sufficient probative value and therefore decided to admit them into evidence. The contents of the recording went directly to the father's inability to isolate the children from his own hurt feelings and his attempts to obtain the cooperation of the child in demonstrating the status quo that he said existed. They also showed that the father did not hesitate in asking the child to convey negative messages to her mother. The fact that this was an interim motion with minimal credible evidence also appears to have been an important factor in Justice McDermot's decision to admit the recordings.
Overall, the circumstances in which surreptitious recordings are admitted in family matters are fact-dependent. They will not be admitted as evidence unless there are compelling reasons to do so. As seen in Auciello, recordings that directly address the best interests of the children involved in the case may be compelling enough to outweigh the public policy reasons to exclude them. Prior to bringing a secret recording before a judge, it is extremely important to consult a family lawyer on whether its probative value offsets the strong policy reasons against their admission.
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