Scarlett v Farrell, 2014 ONCJ 517
This case addresses the issue of entering videos into evidence regarding the issue of child access.
The Mother has sole custody of the parties’ seven year old daughter. The Father sought an Order granting him access to the child which was opposed by the Mother. The Father had not exercised access for approximately two and a half years. The Mother alleges that the child fears the Father due to an alleged sexual assault which was alleged to have occurred two and half years ago. As such, the Mother argued that such access was not in the child’s best interests. The Father had taken three separate video recordings of the child’s behaviour while with him after the date of the alleged sexual assault. The Father sought to enter such videos into evidence submitting that such videos had probative value as they clearly demonstrate that the child was having fun and was relaxed in her father’s presence.
The Court commenced its analysis by citing Seddon v Seddon,  BCJ No. 1062 (BCSC), which held:
It is not desirable to encourage the surreptitious recording of household conversations, particularly so when it is done in the family home and the conversations are between family members. This is an odious practice.
The Court further cited Hameed v Hameed, 2006 ONCH 274, which held,
Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrusts in family law cases, without the parties’ worrying about whether the other is secretly taping them.
…The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so.
In Reddick v Reddick,  OJ No. 2497, the Court found that since the evidence went to such “important issues of parental alienation and inappropriate pressure on the children”, the evidence was to be admitted as it was in the best interests of the children.
The Court considered Toope v Toope, 2000 CarswellNfld 185 (Nfld. UFC), which found that a child’s best interests shall be the paramount consideration and such interests will outweigh any procedural unfairness relating to the lack of early disclosure of the tapes and transcripts. Further, such interests also outweigh a Court’s “repugnance of illegally taping telephone conversations without knowledge or consent”.
The Court reconciled these cases and found that they all stand for the general principle that there is a general repugnance “which the law holds toward these kinds of recordings” (paragraph 31). However, such repugnance may be outweighed if the recordings are of “sufficient probative value”, and, if such value outweighs the policy considerations against such recordings, a Court will admit them having regard to the court’s need to make decisions in the best interests of children (paragraph 31).
The Court continued its analysis by finding that if the recordings have been selectively edited, the Court will be reluctant to admit them into evidence. In applying such jurisprudence to the case before the Court, the Court found that there were “no real authenticity issues surrounding the videos, or the making of them” (paragraph 35).
The Court further concluded that the videos were not taken surreptitiously (paragraph 45). Further, after finding that the video recordings were of sufficient probative value and there is no other “legal basis for the exclusion of the recordings” (paragraph 47), the Court concluded that the recordings should be admitted into evidence.