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Surreptitious Recordings In Family Law

Leslie Taylor

In the current era, surreptitious recordings are commonly encountered in family law matters. It is the case that spouses often believe they will be able to obtain some sort of litigation advantage by way of secretly recording their former partner’s actions or words. The use or admissibility of such recordings, however, is not automatic.

The Alberta Court of King’s Bench recently review of the law of admissibility of surreptitious recordings in St. Croix v St Croix, 2017 ABQB 490. The Court in St. Croix cited the earlier decision of AJU v GSU, 2015 ABQB 6, for the principle that surreptitious recordings should not regularly be admitted as evidence in family law matters:

[18] After that exhaustive review, Justice Pentelechuk [in AJU] concluded:

In my view, it is a rare case where illegally obtained evidence should be admitted, and only after the trial judge holds a voir dire to determine its admissibility…the onus is on the party seeking to enter such evidence to establish a compelling reason to do so.

[19] Setting out the policy ground for the exercise of discretion to exclude such evidence, she said:

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 the litigation and increases expense with ever more voluminous affidavits and exhibits.

While surreptitious recordings have generally been condemned as admissible evidence in family law matters, the Court in St. Croix did make note of the earlier case of Maxur v Corr, 2004 ABQB 752, wherein the Court concluded that there are few, if any restrictions on the admissibility of surreptitious recordings:

[20] Contrary to that position, Justice Lee, in Mazur v Corr, 2004 ABQB 752 said that there are few restrictions on recorded conversations even if they constitute eavesdropping: “At common law, it did not really matter how evidence was obtained.” He said that the surreptitious recording of conversations are “generally not prohibited or illegal” and “can constitute a real evidence of conversations or events that they depict, as long as the other side is aware before the hearing date that these recordings exist and are being relied upon.” He concludes: “Accordingly, short of certain specific privacy expectations, there are few if any restrictions on the admissibility of surreptitious recording of conversations or events.”

2022-09-12T16:26:17+00:00January 7, 2020|Family Law|
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