By Kayleigh Pink, Associate Research Lawyer, Lam Family Law, and
Vanessa Lam, Strategic Advisor and Research Lawyer, Lam Family Law

Surreptitious recordings (aka secret recordings) usually refer to audio or video recordings made by one person, without the other person’s consent or knowledge.

In family law proceedings, these recordings often involve a party recording conversations between themself and the other party/parent, the child(ren), or third-party professionals.

A surreptitiously obtained recording may also be illegally obtained / a criminal offence pursuant to s. 184(1) of the Criminal Code if the person recording it intercepts private communications in which they are not a participant, such as by placing a recorder in the other party’s vehicle or home. However, s. 184(2)(a) effectively states that s. 184(1) does not apply if the party recording the conversation is one of the participants to the conversation: Criminal Code, RSC 1985, c C-46, ss. 184(1) & (2)(a). See also N. v N., 2015 ONSC 3921 (CanLII), at para 36.

Concerns Weighing Against Admitting Surreptitious Recordings

The two main concerns frequently cited by the courts that weigh against admitting surreptitious recordings are: (a) public policy; and (b) reliability.

(a) Public Policy

The Court of Appeal for Ontario has recognized that there are “sound public policy” reasons to discourage the use of secretly recorded conversations in family law proceedings: Sordi v. Sordi, 2011 ONCA 665 (CanLII), at para 12.

For example, condoning the secret recording of parties in family law matters would be “destructive” to what courts and professionals working with families are attempting to accomplish in a constructive family law case, which includes trying “to rebuild trust so that the parties can learn to act together in the best interests of the child.”: Hameed v. Hameed, 2006 ONCJ 274 (CanLII), at para 11.

In other words, “routinely allowing our courts to reward a party’s attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged.”: Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (CanLII), at para 40.

(b) Reliability

In Tillger v. Tillger, 2019 ONSC 1463 (CanLII), at para 64, Justice Richetti held that some common concerns about reliability include:

  • (i) The recording may not accurately reflect or provide context to the events or conversations they purport to depict;
  • (ii) The recording may not accurately reflect the typical behaviour of the person being recorded[;]
  • (iii) The recording likely reflects the “artificial” conduct of the party recording because the recorder has knowledge the recording is being made and may be used in the future;
  • (iv) The recording can easily be edited, removing important parts or the entirety of segments which reflect badly on the recorder or reflect well on the person being recorded;
  • (v) The recording can be selectively chosen from a number of recordings;
  • (vi) The recording likely does not reflect the entire interaction or the context of the interaction;
  • (vii) The recording may not reflect the typical interactions between the parties recorded but only demonstrate an isolated incident;
  • (viii) The recorded incident may [have] been “provoked” by the recorder to cause the recorded party to make illicit, ill-advised statements or behave in an inappropriate manner; and
  • (ix) The recording may have been staged by the recorder to include negative surroundings such as having children present during an argument.

For the court to admit recordings into evidence, the recordings “must accurately depict facts, they have to be verified by the person who made the recording, and there must be an absence of any intention to mislead.”: L.D. v. A.E., 2020 ONCJ 417 (CanLII), at para 52, citing various cases.

Presumption Against Admitting Surreptitious Recordings

In Hameed v. Hameed (2006), Justice Sherr reviewed some of the concerns and policy reasons that justified strongly discouraging the use of surreptitious recordings in family law proceedings, and concluded that the party seeking the admission of a surreptitious recording “should establish a compelling reason for doing so.”: Hameed v. Hameed, 2006 ONCJ 274 (CanLII), at paras 11-13 [underlining added].

In Van Ruyven v. Van Ruyven (2021), Justice Kurz noted that, since Hameed v. Hameed was decided, the court was now regularly provided with secret recordings. Most of the time, the recording is an edited or selectively recorded version of a highly contentious argument between the parties: Van Ruyven v. Van Ruyven, 2021 ONSC 5963 (CanLII), at para 39.

After reviewing the policy reasons for discouraging secret recordings, Justice Kurz held that the “courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it.” This presumption can only be rebutted where the recording provides evidence (1) “disclosing serious misconduct by a parent”, (2) “significant risk to a child’s safety or security”, or (3) “a threat to another interest central to the need to do justice between the parties and children”: Van Ruyven v. Van Ruyven, ibid, at para 41. Followed in numerous cases: see, e.g., Kidd v Mokrenko, 2024 ONSC 4002 (CanLII), at para 36; Sadikali v. Sadikali, 2023 ONSC 4639 (CanLII), at para 10; & Melek v. Mansour, 2022 ONSC 6688 (CanLII), at para 116.

The court has also recognized that this presumption against admitting the recording “is arguably and appropriately even more difficult to rebut when the recordings are of professionals working with the family.”: Wilson v. Sinclair, 2022 ONSC 820 (CanLII), at para 19 [underlining added], citing various cases.

Recent Example Case

In Kidd v Mokrenko (2024), the presumption against admitting a surreptitious recording of the parties prevailed for one video, but was successfully rebutted for another video. The mother sought to file two video recordings as evidence of the father’s “drinking and abusive behaviour”. Justice Cook acknowledged that both videos were “presumptively inadmissible” and that their “prejudicial effect… is presumed to outweigh their probative value in family law proceedings except in the most limited circumstances”: Kidd v Mokrenko, 2024 ONSC 4002 (CanLII), at paras 35-36.

The first video appeared to show “a male individual”, who the mother claimed was the father, “lying face down on a bed, in his underwear, weeping despondently”. The mother did not identify when she made the video, the video was undated, and the audio was “barely intelligible”. Justice Cook found that this video had no probative value and was inadmissible: Kidd v Mokrenko, ibid, at para 38.

In contrast, the second video consisted primarily of the mother “yelling at and berating the [father] in the presence of the child.” After being berated for about four minutes, the father yelled back, using inappropriate language. When the mother then told the father she was recording him, the father did not respond and walked away with the child in his arms. “Despite the very serious public policy concerns engaged in admitting the surreptitious recording into evidence”, Justice Cook admitted this second video “because it is probative to the issues of the [mother’s] credibility, family violence, and the parties’ ability and willingness to communicate and co-operate with one another on matters affecting the child.”: Kidd v Mokrenko, ibid, at para 40.

As in some of the cases discussed further below, the admission of this evidence backfired on the mother who sought to admit the evidence. Justice Cook found that the mother’s claim that she recorded her argument with the father “for her safety” was simply not credible. Instead, the court found that the mother made the recording to exercise control and gain tactical advantage over the father. Her denigration of the father in front of the child fit within the definition of family violence: Kidd v Mokrenko, ibid, at para 41-42, citing various cases.

Caution: Surreptitious Recordings can Backfire on the Recording Party

Even if the court finds that a surreptitious recording is admissible, it may not be used in the manner that the party intended. For example, in S.C.H. v. S.R. (2023), the father sought to have several video recordings, at least some of which were surreptitious, admitted as evidence at trial. The father sought to have these videos admitted to show the mother’s problematic behaviour, such as her behaving in a violent manner or putting a child at risk. Justice Finlayson admitted these videos, but not for the purposes set out by the father. Rather, these recordings were admitted because of the mother’s claim of family violence and coercive control: S.C.H. v. S.R., 2023 ONSC 4928 (CanLII), at paras 594-600, 613, 625, 633, & 642; subsequent motion regarding financial issues at 2023 ONSC 1549 (CanLII).

Similarly, in K.M. v. J.R. (2022), surreptitious recordings were admitted, but the court did not rely on them in the way intended by the parties. In this case, both parties provided the court with surreptitious recordings. Uniquely, the parties consented to the recordings being admitted. One of the videos provided by the father was a 30-second recording of a private conversation between him and the child. He introduced the video to show how unhappy the child was before going to see his mother. Justice Pazaratz found that this “video was heart-breaking but not for the reasons the father intended”. For example, the recording “was an overt evidence gathering mission” by the father “to elicit specific statements from a trusting and distressed child”. Overall, Justice Pazaratz found that the parents in this case had “become so obsessed with gathering damaging evidence against one another that they have lost track of the devastating consequences of their actions on the child.”: K.M. v. J.R., 2022 ONSC 111 (CanLII), at paras 194-195 & 207-209; subsequent motions and motions to change at 2024 ONSC 1338 (CanLII).

Practice Points

  • Understand the policy reasons and presumption against surreptitious recordings and explain it, and the types of exceptions that may apply, to your client.
  • Remember your own duty to advise your client of their duty to, to the best of their ability, protect any child from conflict arising from the proceeding and their duty to act in a manner that is consistent with the best interests of the child.
  • Consider the circumstances and full context of any surreptitiously recorded evidence to assess any reliability issues.
  • Consider the relevance and probative value of the recording, whether the recording was obtained illegally, and whether the recording could backfire on the person seeking to admit the recording.
  • If your client wants to admit the recording as evidence, ensure that the person who made the recording can verify/authenticate the circumstances and integrity of the recording. The process of establishing authenticity and integrity is beyond the scope of this blog post, but you should understand how to properly introduce the recording and the applicable provisions of the Evidence Act. See e.g., Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII), at paras 58-61 & Lenihan v. Shankar, 2021 ONSC 330 (CanLII), at paras 216-222.