The Use of Secret Recordings in Family Litigation: Smoking Gun?
Often in separation or divorce, people wonder if it is appropriate to surreptitiously record, or film, private conversations with their partner. In today’s blog, savvy litigator Chris Park of our Vancouver office discusses Secret Recordings in Family Litigation. This may be done for a number of reasons: to protect oneself, to obtain evidence for litigation-purposes, or for one’s own memory and record-keeping. Some may believe this is an illegal act of intercepting a private communication, and some may think this is a legitimate method of gaining an advantage in family litigation. When cases involve he said she said opposing views sometimes a tape recording tells the truth, but other times the secret recordings in family litigation can be staged or edited.
Vancouver Secret Recordings in Family Litigation
The truth, as usual, is somewhere in the middle:
Section 184 of the Canadian Criminal Code states that recording private conversations is an illegal act unless one of the participants consents to the interception. As such, while it may be illegal for someone to secretly record their partner’s private conversation with a third party, it is not illegal for someone to record their own conversations with their partner. However, just because it is not illegal to record yourself talking with your ex, it does not guarantee that said recording can be used as evidence in a family litigation setting.
Warhorse family professor Rollie Thompson states:
In my “Any Rules” article, I summarized the current state of the law on parents illegally recording others: Judges split into two camps: those who do not like the practice, want to discourage it and thus exclude the evidence; and those who do not like the practice, want to discourage it, but nonetheless admit the evidence because of its relevance to this particular child’s best interests.
As public policy, courts often discourage parties in family law matters from making secret recordings to use in family litigation, and will try to weigh the probative value of the recordings against the prejudice that might arise from such recordings being used as evidence. In the recent Supreme Court of British Columbia case, C.C. v. S.P.R., 2022 BCSC 1057, the court contemplated the admissibility of four audio recordings by the husband of his conversation with his ex, as well as transcripts of those recordings. The court held a special hearing to determine whether these recordings and transcripts can be used as evidence by the husband.
Surrey Secret Recordings in Family Litigation
Here, the court set out the following four-branch test to determine whether the husband’s recordings could be used as evidence:
(1) is the recording relevant;
(2) are the recorded parties known;
(3) is the recording trustworthy; and
(4) does the evidentiary value of the recording outweigh the prejudicial effect of admitting the recording as evidence?
The court added that family law tape recordings are relevant where they provide insight into the circumstances of the parties’ relationship with each other and their child that has some relevance to the issues at trial. In this instance, the court decided that three of the four secret recordings in family litigation “provide insight into the circumstances of the parties’ relationship with each other and their child that has some relevance to the issues at trial”, and allowed them to be admitted as evidence, while the fourth recording was discarded for irrelevance.
BC Family Law Tape Recordings
Even as the court admitted three of the four recordings into evidence, it was again made clear that courts generally do not appreciate the practice of making secret recordings of private conversations for family law matters, which many believe runs counter to the objectives of modern family law by destroying the trust between the parties as well as any children, and raising the level of conflict. Notwithstanding, it is important to know that if relevant, reliable, trustworthy recordings exist that prove or disprove a material fact, it may be used as evidence in a family legal proceeding. For an Alberta case where a telephone recording was not admitted see LaCroix v Lacroix.
If you have questions concerning the use of Secret Recordings in Family Litigation or other family law tape recordings questions, contact our lawyers across BC, in Alberta and in downtown Toronto.