A recent decision out of Alberta suggests that the answer to this question will depend on the specific facts and circumstances in question. The decision also provides a helpful overview of how such recordings have been treated in the past, which may be instructive to how they may be treated in other decisions.

What Happened?

The parties in question, a former couple who were in the process of getting divorced, were in family court for (among other things) a review of a parenting application in which the mother sought sole custody and primary residential care of their daughter, as well as child support. In support of her request, she sought to introduce a recording she had made on her iPhone.

The mother claimed that the recording included the father telling her that if she “ever [tried] to take [the daughter] from [him], [he’d] have [her] killed”, and the father also threatening to “rip [her] head off”. Both the mother and the father agreed that the recording had been made without the knowledge or consent of the father.

A court had previously granted an Emergency Protection Order prohibiting the father from being within 100 metres of the home or workplace of the mother and preventing him from communicating or having any other direct or indirect contact with the mother or the former couple’s daughter. The father was eventually granted supervised access to the daughter twice per week.

Counsel for the mother argued that the recording should be admitted because it was highly relevant to her parenting application, and necessary to determine the best interests of the child. Counsel for the father argued that the recording was not relevant, and that, in any event, it had been illegally obtained.

The Law on Secretly Recording Your Ex

The court reviewed previous decisions in which secret recordings had been at issue.

In one decision, a judge reviewed an application where an ex had hacked into the email account of the other ex and attempted to use what they found as evidence in a fight over child support. The judge found that the email evidence was not relevant and did not admit it, and said that:

…I agree with…the condemnation of surreptitious recordings of family conversations in the family home and the breach of privacy inherent in that…

The judge further noted that, even if the emails had been relevant, he would have had to exclude them because of the way in which they had been obtained, since “[t]he Courts should not countenance unlawful or unseemly practices, and it seems to me that turning a blind eye to such practices may put the appearance of fairness into question…”.

In an Ontario decision, a father whose ex had accused him of sexually assaulting their daughter sought to introduce a video recording of the daughter happily playing and being relaxed in his presence (taken some time following the alleged assault) as evidence that he should be granted access to the child. In determining whether or not the video should be admitted in the ongoing custody dispute, the court noted that caselaw (i.e past court decisions) generally “recognized the general repugnance which the law holds towards these kinds of recordings”, but that a court must consider the general value that such a recording might provide, and weigh that value against the general policy considerations against such recordings, and in the best interests of the child. In that case, the video had not been taken surreptitiously, and there was, therefore, no legal basis for excluding it. The court did note that if the video had been taken secretly, the court would have declined to admit them into evidence.

In another decision, the judge addressed the admissibility of spyware that had been illegally installed on an ex-wife’s computer.  At issue between the former partners was sole custody, with the ex-husband claiming, among other things, that the children were in danger when in their mother’s care. The judge, in that case, undertook an extensive review of cases from across Canada that had dealt with secret recordings and concluded that:

In my view, it is a rare case where illegally obtained evidence should be admitted, and only after the trial judge holds a voir dire to determine its admissibility…the onus is on the party seeking to enter such evidence to establish a compelling reason to do so.

The judge also provided a policy for excluding such evidence:

If we accept that acrimony between parents and the adversarial process is damaging to children, admitting such evidence under the guise it is relevant to determining a child’s best interest seems counterintuitive. Admitting such evidence encourages more. Not only does it risk rewarding the parent who possesses a greater acumen for documenting and recording, but it prolongs the litigation and increases expense with ever more voluminous affidavits and exhibits.

At least one judge took a completely contrary position with respect to secretly recorded conversations, noting that:

[surreptitious recordings of conversations are] generally not prohibited or illegal… [and] can constitute a real evidence of conversations or events that they depict, as long as the other side is aware before the hearing date that these recordings exist and are being relied upon…[a]ccordingly, short of certain specific privacy expectations, there are few in any restrictions on the admissibility of surreptitious recording of conversations or events.

The Decision

The judge noted that, in this case, he had not gotten a chance to review the iPhone recording that the mother sought to introduce as evidence beforehand. He noted that admitting secret recordings as evidence should only happen in rare cases and only after a judge had a chance to examine the recording in advance to determine its admissibility.

The judge did not allow the recording into evidence, but noted that the judge hearing further disputes between the couple might exercise his or her discretion differently.

Lessons Learned

Secret recordings of your spouse, including video, audio, spyware, or other technologies that can track their behaviour or communications may or may not be admissible in court, depending very much on the particular circumstances surrounding the recording.

Ultimately, no matter how acrimonious a family law dispute is, it is rarely a good idea to record your spouse, whether or not they know you are doing so. Seeking to introduce such evidence may simply serve to lengthen what can already be a long process, and may potentially be viewed negatively by the court and possibly be held against you.

If you have questions about separation, divorce, or related matters including child support or spousal support contact Financial Litigation for reliable family law advice. To make an appointment, reach out to us online or call 416-769-4107 x1.