In the case of Scarlett v Farrell, 2014 ONCJ 517, Justice Spence considered whether video recordings made by the father should be admitted in a custody trial.
At the point of trial, the mother had sole custody of the couple’s 7-year-old daughter and the father had not had access for approximately 2½ years. The mother’s position was that access was not in the best interests of the child because the child was fearful of the father due to a sexual assault which the mother alleged the father perpetrated on the child. This alleged assault led to the mother ending access by the father to the child.
The father took three video recordings of the child when she was 5 years old. He said they had probative value because they demonstrated that the child was not afraid of him.
The mother objected to the videos being admitted because she said they were taken surreptitiously.
Justice Spence’s decision included an overview of previous case law on the admissibility of surreptitious audio and video recordings in family court proceedings, which is what makes this case particularly useful.
In Seddon v Seddon,  B.C.J. No. 1062 (S.C.), the court wrote:
I am of the opinion that it is not desirable to encourage the surreptitious recording of household conversations, particular so when it is done in the family home and the conversations are between family members. This is an odious practice.
In Hameed v Hameed, 2006 ONCJ 274 (CanLll), Justive Sherr stated:
Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust 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.
The judge in Reddick v Reddick,  O.J. No. 2497 (Ont. Gen. Div.) permitted surreptitiously made recordings to be introduced as evidence:
I conclude that the evidence of tape-recorded conversations between the mother and the children . . . is relevant, reliable and probative. In the particular circumstances of this case, the fact that the evidence goes to such important issues of parental alienation and inappropriate pressure on the children leads to the conclusion that it should be admitted in the best interests of the children.
Finally, in Toope v Toope, 2000 CanLll 28375 (NL SCTD), Cook J ruled:
I find that the tapes and transcripts are relevant to the issues before the Court, especially in considering whether Mr. Toope planted the seeds of parent alienation. . . Adam’s best interests must be the paramount consideration. This outweighs any procedural unfairness relating to the lack of early disclosure of the tapes and transcripts. It also outweighs the Court’s repugnance of illegally taping telephone conversations without knowledge or consent. In short, with a degree of reluctance, but also by not condoning such calculated subterfuge, the evidence sought to be adduced can be considered at the hearing of the application on its merits.
Justice Spence then drew his own conclusion that the cases above were consistent with one another in that they all recognized the “general repugnance which the law holds towards these kinds of recordings.” He went on to say:
However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value and if. . . the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court’s need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court.
Based on the evidence provided, Justice Spence ultimately dismissed the mother’s claim that she was unaware that the recordings were being made and found that there was sufficient probative value in the videos to outweigh any prejudicial effect, so allowed them to be admitted into evidence. He ended his decision with this caveat:
However, I do wish to add the following. Had I found that the videos were taken surreptitiously, I would have declined to admit them into evidence. While the videos do disclose what could be characterized as having some probative value, that probative value does not, in my opinion, rise to the threshold level of a “compelling reason” for inclusion into evidence, when weighed against the policy considerations for refusing to admit into evidence recordings of family events taken surreptitiously.