Separation is an emotionally latent process which oftentimes leads to heated interactions between ex-spouses. While expected and even normal, sometimes those interactions escalate to the point of becoming significantly inappropriate, abusive or even dangerous. With this in mind, it’s understandable that a lay person would think it prudent to record their ex who they believe is engaging inappropriate behaviours as a means to collect evidence for court. After all, recordings can, in some circumstances, provide indisputable facts of past conversations or events to help settle the issue of “he said/she said” which is so prevalent in family court.
Others use recordings as a means of real-time protection. The logic goes as follows: if my ex knows they’re being recorded then they’ll refrain from acting out towards me. This again seems to make total logical sense and, in some cases, may even be encouraged.
What most people don’t know is that a recording is often not the smoking gun they think it is. Why not, you may ask? Well, the first issue that comes up is that of legality: Is it illegal to record my ex? Section 184 of the Criminal Code of Canada states that it is a criminal offence to “intercept” a private conversation with some few exceptions. One of those being, for example, where one of the participants consents to the recording. Hypothetically speaking then, if you record a conversation between you and your ex which is taking place in the parking lot of Tim Hortons, you are the one participant giving consent and likely have avoided criminal liability. But what if you install a video camera inside your ex’s home which captures interactions between your ex and other third parties but not you? Or what about the case of a person who installs a camera in the hallway of your ex’s spouse which happens to be pointing directly into a bedroom or bathroom and captures more than just conversations? In the latter two examples it’s likely that you will have attracted criminal liability.
For the sake of this blog, let’s assume that the recording has been obtained legally, the next question is whether the recording is admissible in court. For it to be admissible in court the evidence (the recording) must follow the general rules of evidence. In other words the court must be satisfied that the recording is relevant and trustworthy. The recording’s probative value must also outweigh any prejudice the recording may have. When assessing the probative value of the recording the court will consider (i) the strength of the evidence (ii) the extent to which the evidence supports the inferences that the party is seeking to be made from it, and (iii) the extent to which the matters it tends to prove are at issue in the proceedings.
A judge therefore has to follow a four-step process in order to determine the admissibility of your recording: a judge must consider the relevance of the recording, consider the probative value of the recording, consider the prejudicial effect of the recording and then undertake a balancing of the probative value against the prejudicial effect.
In Van Ruven v Van Ruyven, 2021 ONSC 5963 at para 41, cited in K.F.M. v K.G.T., 2023 BCSC 1347 at paragraph 237 the Court found that it should
“… presume that the prejudicial effect of those secret recordings far outweighs their probative value in our system of family law and the best interest of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, pr a threat to another interest central to the need to do justice between parties and children.”
Needless to say, the test to admit a recording into evidence is not a small one.
Let’s again assume that your recording is both legal and admissible, even then it’s not uncommon for recordings, especially those taken serendipitously, to be given little weight in court. The reason being is that Judges typically question the trustworthiness of secretly recorded conversations. They often recognize that secretly recorded conversations are often incomplete, lack context, or staged in the sense that the person doing the recording is on their best behavior.
To summarize, relying on a recording to be used as evidence in court is not as easy as you may think. You definitely won’t be able to waltz into court and hand your phone up to the Judge to play the video (there is a Policy on the Use of Electronic Devices in Courtrooms that sets out the permitted and prohibited use of electronic devices in courtrooms). There is also the whole other issue of straining your already complex relationship with you ex by recording them.
Then what can you do aside from recording you may ask? That will depend largely on your reasons for recording. For example, if your reason for recording your ex is because you fear they will hurt you or your child, then you may want to seek a protection order. Of course in any situation where you fear an imminent threat we suggest you call 911 immediately.
If your reason for recording is to ensure that the exchange of the children is done without any inappropriate comments or behaviour, you may want to consider having a third party supervise the exchange. Alternatively, you could arrange to pick up or drop off your child at the start or end of school that way only one of you has to be present.
Given the vast number or reasons people have to record their ex, I would strongly encourage you to seek the advice of lawyer to see what other options may be available to you which may better address your concerns.
