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  • Writer's pictureJared Davies, Lawyer

An examination of surreptitious recordings in family law

Overview

Parties in family law disputes often think they can cleverly obtain a “smoking gun” by taking surreptitious recordings of the other party to use against them in Court. A classic example is a parent secretly recording the voice of their child disparaging the other parent, in an attempt to show why the child should be in their care. This is a mistaken belief. In most instances, surreptitious recordings will only hurt the party’s own case. However, a court will engage in a type of cost/benefit analysis to see if the evidence is worth admitting. Below is a brief examination of two cases, Hameed v Hammed and Paftali v Paftali and the specific reasoning used to reject surreptitious recordings from being admitted into evidence.

Hameed v Hameed, 2006 ONCJ 274

In Hameed, the father …included transcripts and audiotapes of telephone calls that he had surreptitiously recorded with the mother and of a telephone conversation that he had with a third party who had supervised his access. In the motion, he tried to use the recordings to catch the mother in a lie. The Court ruled:

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. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.

However, the Court did note that they may still weigh the policy factors for and against admitting the evidence:

The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.

Thus while surreptitious recordings are usually not advisable, there can be some circumstances where it is warranted. For instance, what if a parent was making violent threats against the other parent over phone call? Would a surreptitious recording of such a call provide more value than the harm of the recording? While it would depend on the exact facts of the scenario, it is possible this type of recording might be warranted.

Paftali v Paftali, 2020 ONSC 5325

In Paftali, the mother sought to introduce surreptitious recordings that had been made of the respondent father, most of which were conversations with the mother:

Such practices offend the privacy interests of the individual and the family, and are the type of "odious practice" that the courts typically seek to discourage in family law proceedings because they are destructive of the maintenance, restructuring, and encouragement of constructive family relationships.

In other words, parties should be able to have a conversation without the fear of being recorded by the other. If it was such that audio recordings were commonplace and acceptable, parties might simply elect to not speak to each other—this, of course, is destructive for the encouragement of ongoing family relationships. The Court continued:

Counsel for the applicant mother argued that it was necessary to adduce the recordings so that the court could appreciate the actual tone of voice and language that the respondent father used with applicant mother and, to a lesser extent, the children. In my view, the court did not need to admit multiple samples of "tone." It is, unfortunately, commonplace in high-conflict litigation that parties speak in angry tones with each other, use profanity-riddled language, and generally are not on their best behaviour. One does not need to admit into evidence surreptitious recordings - and thereby countenance the odious practice of their making - in order to appreciate that parents engaged in high-confliction litigation generally behave very badly with one another. As such, it cannot be said that the contents of the proffered surreptitious recordings "provide necessary assistance in determining the best interests of the children."

…I rejected the fundamental premise in the submission of the applicant mother that these recordings were fully representative of how the parties dealt with each other, in that, because the applicant mother is the one who is recording the exchange and therefore knows she is being recorded, while the father does not, the mother is able to control her tone and language on the recording and, put colloquially, "play for the audience." There is an element of inherent unfairness in suggesting that such recordings are truly representative of the dealings between the parties when one party has effectively reserved to herself the right and ability to manipulate how she is presented on the recording. As such, apart from the public policy concerns and other grounds, such recordings are not a reliable representation of both parties…

Bottom line, it could not be said that the probative value of these proffered surreptitious recordings outweighed the policy considerations that, in my view, argue strongly for their exclusion, and I excluded them on that basis.

Courts are obliged to balance the probative value of the recording against the public policy concerns raised. Again, the “probative value” cannot be trivial—it must outweigh the policy concerns. Using surreptitious recordings to prove a certain “tone” that the Court would have already expected to take place was not enough to look past the policy reasons for refusing these recordings. And further, if one party is doing the recording and the other party does not know it is taking place, obviously the "recorder" is going to be on their best behaviour.

Obvious takeaways? The Court generally dislikes surreptitious recordings. These recordings will probably hurt your case if you try and use them in Court. Recordings are typically against the best interests of the child, the reasonable privacy expectations of parties and they are not conducive to familial relationships. However, such recordings may be helpful in cases where the value provided outweighs the policy concerns.


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