To Tape or Not to Tape: The Admissibility of Digital Recordings in Family Law
F.(A.) v. A. (B.J.), 2017 Carswell 3126
This case discusses some of the factors that judges will weigh when considering whether to allow digital recordings to be submitted as evidence.
Both parents are seeking primary custody of their young son, each proposing weekend access for the other parent. The father's argument for primary custody is premised on his concern that the mother is emotionally unstable and therefore may cause emotional harm to the child. He wants to submit evidence of her behavior to the court in the form of recorded phone calls, and the mother wants them to be excluded.
Trial judges have a lot of power to choose whether to admit this type of evidence. The inclusion of audio and video recordings as evidence in family cases is historically limited. Judges are reluctant to include them as evidence in family cases because parents often get their children to say that they want to live with one parent or fear the other on a recording. This exposes the child to emotional harm and manipulation.
The judge in this case looked to public interest (which discourages the use of secretly recorded interactions) and the evidentiary value of the tapes in relation to the case at hand. In this case the judge decided to admit the recordings into evidence because the mother had been warned by the father that he intended to record their telephone conversations back in 2014, so she knew or ought to have known that she was being recorded. The judge was particularly troubled that she engaged in such erratic behavior in spite of this warning on the phone. If she behaved like this when she thought she was being recorded, how bad might her emotional issues be in other situations?
Furthermore, because the conversations being recorded were between two adults and not an adult and a child, the likelihood of manipulation was reduced. Justice Sager therefore felt that the recordings would add value to her understanding of the mother's emotional state, which was at issue in this proceeding. Given that she had been warned that she might be recorded, allowing the phone recordings into evidence was not considered as contrary to public interest.