A warning not to record your partner in family law proceedings from the bench.
BACKGROUND
The parties were married in 2017 and first separated in 2019, however thereafter reconciled in March of 2021 when the father returned to the matrimonial home. The parties again separated in July of 2021 but continued to reside in the matrimonial home together, along with their four-year-old daughter. The parties physically separated when an incident occurred involving the child ingesting a cookie laced with marijuana which belonged to the father. The mother called an ambulance to take the child into the emergency room. She also called the father, who was much less concerned about the incident. Despite her panic, the mother proceeded to record the conversation that she had with the father. To make matters more complicated, the father also had recorded a number of conversations with the mother. Unfortunately, after this incident the mother removed the child from the home and refused to tell the father where they were. The father then brought this motion for interim primary care of the child and the mother brought a cross-motion for primary care. As both parties attempted to include the recordings into evidence, Justice Kurz took the time to address technology and the increase in family law litigants recording their partners and children.
ANALYSIS
The world that we live in presents an opportunity for everything that people say and do to be recorded, which also means that in this evolution we see secret recordings made by spouses of each other and their children. In the law of evidence, the general rule is that if it is relevant, it is admissible as long as it is not hearsay. However, it is important to understand that there must be a line between the privacy considerations of individuals and the value that the recording brings to the matter. Justice Kurz listed many sources of case law that point to the disallowance of such recordings being included as evidence since their value did not outweigh the public policy considerations. With this in mind, Justice Kurz explained that it would be dangerous not only to family law, but to the parties and children involved to treat them as if they were living under the Stasi in East Germany. To allow litigants to continuously spy on the other party and include such recordings into their evidence would increase conflict in already very contentious matters and therefore must be discouraged. Justice Kurz then stated that the courts must presume that the prejudicial effect of the recordings far outweighs their probative value to our family law system and the best interests of the children.
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