Every family lawyer gets asked this. Usually the client has already done it and wants to know whether it helps. Sometimes there are months of recordings sitting on a phone before anyone thinks to ask.
A recent Ontario decision admitted secretly recorded phone calls in a family case, and it is being passed around as a green light. Read the reasoning and it is nothing of the kind. The judge went out of her way to explain why the usual rule did not apply on those particular facts.
The Starting Position Has Not Changed
Ontario family courts have long discouraged surreptitious recordings between separating spouses. The concern is not really about privacy law. It is that secretly recording the other parent poisons whatever cooperative relationship is left, and where there are children who need two parents to communicate, that damage outlasts the litigation.
Courts have admitted such recordings before, but the general admonition against them has been the backdrop, and judges have said so repeatedly. The starting assumption has been that the practice is corrosive even where the contents turn out to be useful.
What The Recent Case Actually Held
The wife tendered recordings of telephone calls with her husband. He objected because some were made secretly. A separate hearing was held to decide whether they came in.
The judge admitted them. She found them reliable and authenticated, and found their value in showing hostility, threats, language and a pattern of harassment outweighed any unfairness to him. So far, unremarkable.
Then she explained why the usual caution did not apply, and this is the part being left out. The calls took place after the children were independent adults. There were no dependent children. And there were no good faith relations left between the spouses to preserve. The recordings went specifically to claims arising from abusive conduct and coercive control, and much family violence happens in private, where there are no other witnesses.
Read together, that is a ruling for a narrow situation: grown children, a relationship with nothing left to protect, and allegations of violence that by their nature leave no independent record.
Which Means The Opposite Of What People Think
If you have dependent children and an ongoing co-parenting relationship, the reasoning in that case does not help you. The very factors the judge relied on are the factors you do not have.
In an earlier Ontario case involving recordings of a parent with a child during parenting time, the recordings were admitted after a separate hearing on the point, but the court’s discomfort with how they had been obtained ran through the reasons, and the conduct was not cost-free.
Admissibility is also not the same as benefit. A recording can come in and still damage you. Judges notice who was recording whom, for how long, and what that says about the household and about the person who pressed record. In a case about parenting, that impression is not easily undone.
Before You Record Anything
Ask what you are trying to prove, and whether anything else proves it — messages, emails, medical records, a third party who was there. Then ask how a judge will read the fact that you were recording at all, in a case where you will be asking to be trusted as a parent.
And get advice before, not after. This is one of the few decisions in a family file that cannot be undone once it is made, and it is the one people most often make alone.
This article is general information about Ontario Family Law procedure and is not legal advice. It does not describe any specific client’s matter. For advice on your own situation, speak with a lawyer or set up a consult with us today.
