Our high net with family lawyers regularly deal with Improperly Obtained Surreptitious Evidence in Family Law Disputes. Getting to the truth is important. We have succeeded in using tape recorded evidence concerning family violence and relationship support evidence in a $150,000,000 family law dispute.
Family law cases in Canada are determined (whether by a Judge in Court or by an Arbitrator in Arbitration) on the law and the facts. The facts are determined by the evidence submitted by the parties and accepted by the Judge / Arbitrator. As we have repeatedly indicated in these articles, full financial disclosure is one of the ‘pillars’ of family law in Canada – it allows for honesty and transparency regarding finances; saves both parties time, money and stress of litigation, and; provides a sense that justice was done (see our previous article “Enforcing Family Law Financial Disclosure”.
So, should we allow or ban Improperly Obtained Surreptitious Evidence in Family Law Disputes? It depends on whether the truth matters and how valid the tape recording is because they can be staged.
Vancouver Improperly Obtained Surreptitious Evidence in Family Law Disputes
Our cases are cited by lawyers in cases involving a balancing of tape recordings and ensuring the court gets to the truth:
While not encouraged by the courts, audio or video recordings of private conversations may be admissible subject to the general rule of relevance. There is no express statutory rule excluding such evidence and the Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11 does not apply in cases between private individuals (Sweeten v. Sweeten, 1996 CanLII 2972 (BC SC) (Master)). For an early review of British Columbia and Ontario decisions on the admissibility of tape recordings in family matters, see Mathews v. Mathews, 2007 BCSC 1825, which continues to be cited regularly. In Mathews, the issue was the admissibility of a stolen diary.
The weight of authorities favours the admissibility of recordings, provided that the evidence satisfies the criteria of relevance, identification, trustworthiness, and probative value outweighing prejudicial effect (A.M.E.R. v. P.J.R., 2003 BCSC 1466). However, courts often find secretly recorded conversations to be untrustworthy evidence where there is a possibility that they may be incomplete, edited, or lacking context.
See MacLean Law’s winning case in Fleury v. Budd, 2023 BCSC 1749 at paras. 22 to 25 for the legal principles (and see the decision generally for a detailed analysis applying the principles to 30 audio recordings—categorized by topic—to determine which were admissible).
But full financial disclosure, and sometimes the method of obtaining and submitting that financial disclosure and other ‘evidence’, can sometimes come with privacy and other concerns. In this regard, ex-spouses are usually not entitled to go on a “fishing expedition” by seeking exceptional or additional financial disclosure other than that which is routinely exchanged on separation (MBH v. CKI, 2023 ABKB 284 at para. 62).
So what do the Courts and Arbitrators do if an ex-spouse is trying to request or submit evidence (particularly financial information) if that information has been obtained illegally or improperly or raises privacy or other concerns? Earlier Alberta cases took the view that “surreptitiously” obtained evidence could be admitted so long as the opposing party had the opportunity to review the evidence ahead of time (Mazur v. Corr, 2004 ABQB 752) or the evidence had sufficient probative value (Scarlett v. Farrell, 2014 ONCJ 517).
Calgary Improperly Obtained Surreptitious Evidence in Family Law Disputes
But more recently, Alberta Courts have started to question whether that sort of evidence should be admitted at all. In the 2015 case of AJU v. GSU (2015 ABQB 6), Alberta Court of Queen’s Bench (as it was then known) Justice D.L. Pentelechuk held that surreptitious recordings (in this case, information obtained using spyware) should not regularly be admitted as evidence in family law matters, noting (at para. 167):
“If we accept that acrimony between parents and the adversarial process is damaging to children, admitting such evidence under the guise it is relevant to determining a child’s best interest seems counterintuitive. Admitting such evidence encourages more. Not only does it risk rewarding the parent who possesses a greater acumen for documenting and recording, but it prolongs litigation and increases expense with ever more voluminous affidavits and exhibits.”
More recently, in the 2023 case of D(SJ) v. P(RD) (2023 ABKB 84), Alberta Court of King’s Bench Justice S. Leonard set out that the test for admission of improperly obtained evidence in family matters (in this case, text messages obtained from the other party’s cell phone) is whether the probative value (ie. relevance, usefulness in determining the issues) of the evidence outweighs the prejudicial effect (financial damage, embarrassment, etc.) of such evidence, noting (at para. 25):
“There are important policy reasons for limiting the admissibility of surreptitiously or improperly obtained evidence in family law matters. Behaviour that increases conflict in families is not in the best interests of children and should be admonished. The question is whether the probative value of the text messages outweighs their prejudicial effect.”
Surrey Improperly Obtained Surreptitious Evidence in Family Law Disputes
Specifically, Justice Leonard warned about the risks of going on a ‘fishing expedition’ in regard to seeking additional (ie. ‘exceptional’ ) disclosure, noting (at para. 34):
“I have already discussed the ways in which the text messages may assist in determining issues that will impact the best interests of the child. Further, I am particularly mindful that it is not uncommon in family law litigation that one party accuses the other of hiding assets, being underemployed or otherwise manipulating assets that are subject to division. When these allegations come before the Court, we ask for evidence and in its absence, we take care not to allow or encourage fishing expeditions by ordering exceptional disclosure…
Similarly, in the 2023 case of BLS v. JJC (2023 ABKB 573), Alberta Court of King’s Bench Justice D.R. Mah held that improperly obtained evidence (here, a video recording of a phone conversation between the parties) should not be admitted as evidence in a parenting application, noting:
“The Courts evidentiary gatekeeping role in any proceeding requires the Court to weigh the probative value of otherwise admissible evidence against its prejudicial effect. Prejudicial effect does not only relate to a party’s interest but also to the administration of justice itself and its efficacy and efficiency. Here the probative value of this evidence is too limited to justify admission.”
There is no question that full financial disclosure is one of the ‘pillars’ of family law in Canada – it allows for an effective and efficient determination of a fair resolution of these matters. But the attempted use of illegally, improperly or potentially embarrassing information in such proceedings can have the opposite result, leading to prolonged litigation and increased expense for both parties.
But perhaps the more serious result this can have is on children. The collection and use of ‘surreptitiously’ collected evidence in family law proceedings (particularly involving children) is to be discouraged.
