Can you use recordings in family law proceedings?
Can you? Yes. Should you? That’s not as easy to answer.
While courts may allow audio or video recordings of private conversations to be admitted (subject to the general rules of evidence, and subject to whether the prejudicial effects of the evidence outweighs its probative value), the courts have not been shy to actively discourage or reprimand those parties’ who do use such recordings in the family law setting in inappropriate circumstances.
A few examples of this are as follows:
- In the context of a custody dispute, a judge was faced with 20 hours of surreptitiously recorded conversations made by the father after having planted voice activated devices around the family home prior to separation. The judge in that case refused to admit the evidence and stated the practice of getting evidence by secret recording was “odious” and was not to be encouraged by permitting those who engage in it to benefit from it. (Seddon v. Seddon, 1994 B.C.J. No. 1729)
- Parties who captured recordings of the child’s words or actions were seen by the judge to have put their own self-interest ahead of the interests of the child (D.M.K v D.B.L 2016 BCSC 925) and have said “Clearly, such actions are violations of trust and privacy of those recorded. That one party would consider it appropriate to record others surreptitiously shows telling self-entitlement and questionable judgment. In my view, such actions should not be condoned except in the most egregious circumstances.” (I.J.R. v J.J.B. 2018 BCSC 1856
- Courts have called the practice of using recordings of children “particularly repugnant” (I.J.R. v J.J. B, 2018 BCSC 1856) and an “unfortunate practice” (Finch v Finch 2014 BCSC 653), as children ought to be “entitled to have unguarded conversations with their parents- they ought not to be put into a position of worrying about whether their words will wind up in a transcript attached to an affidavit” (K.L.K. v. E.J.G.K. 2013 BCSC 2030)
- In the context of a relocation dispute, both parents repeatedly made reference to the child’s words in their affidavits. While not in the form of a recording, the court was “appalled” at the extent to which the parties presented evidence as to their discussions with the child. The court stated:
“This child has no place in any discussions about a dispute between her parents about any disputed matter…A six-year-old should not be drawn into a battle between her parents…; she should not be used as a foot soldier in two adults’ battle. That is a shocking recruitment of an innocent by two warring adults who both know better.
…And so I would express my strongest disapproval to both parties to the extent that they have engaged Child J. in those kinds of discussions and sought to use her words as ammunition against each other. I urge them to cease doing anything like that going forward, because children who are recruited as foot soldiers in their parents’ battles are ultimately the most tragic casualties of those battles. It is one thing for the parties to fire shots back and forth at each other and inflict wounds, but to bring the child or children into the battle and seek to align them with one side or the other is an unconscionable practice. It should not have been happening here, and it has to stop.” (C.L. v. J.H., 2015 BCPC 405)
So when it comes to family proceedings, yes you are able to take recordings and admit them into evidence (as long as it is a private conversation you are a part of; it is illegal to record conversations where neither party to the conversation consents to the conversation being recorded). However, think twice before making a recording that involves your children. If the value of that evidence does not outweigh the harm done to your child by including them into your litigious lawsuit, my advice to clients will always be to keep their children as far away from the courtroom as possible.
Julia Chalkley is a family law lawyer and estate lawyer at Doak Shirreff Lawyers LLP. Click here to connect with Julia. She can also be reached at [email protected] or 250-979-2532.