Too often family law disputes turn in to “he said, she said” fights. Without hard proof of what was actually said, judges are left in the difficult position of determining which party is more credible. No wonder many people are tempted to record their conversations with their partners, especially if they believe that what their partner says will directly contradict what they’ve previously told a judge or social worker. Although tape recordings are proof of exactly what was said, they are not always admissible as evidence in family law proceedings, especially where the person being recorded is unaware that they are on tape. In his recent decision in F. (A.) v W. (J.), 2013 ONSC 4272, Justice John Harper of the Ontario Superior Court of Justice gives a good overview of the factors a court will consider when deciding whether to allow audio recordings as evidence in a family law dispute.
F. (A.) v W. (J.) was a review of Justice Harper’s previous order which had found the mother in contempt. After the original order, the mother was given an opportunity to remedy her behavior before the scheduled review. However, the mother’s inappropriate behaviour continued. When Justice Harper learned that the father had surreptitiously recorded two conversations with the mother, Justice Harper decided to conduct a voir dire (a trial within a trial) to determine whether these recordings would be admissible as evidence in the proceeding.Justice Harper reviewed previous decisions regarding the admissibility of audio recordings, including that of Justice Sherr in Hameed v. Hameed, 2006 ONCJ 274. Justice Harper agreed with Justice Sherr’s reasoning that the surreptitious recording of the other party in family law matters should be discouraged, the reason being that such recordings make it difficult for the parties to rebuild the trust required in order to act together in the best interests of the child.In considering whether to admit the audio tapes, Justice Harper quoted with approval a passage from another case, Tatarchenko v. Tatarchenko (1998), 83 A.C.W.S. (3d) 792,  O.J. No. 4685, where it was said that: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.Justice Harper ultimately ruled that the audio tapes were admissible because they were evidence that the mother’s behaviour when in the presence of therapists, social workers, and Justice Harper himself was merely a façade for her behaviour in front of the husband and their children. The communications captured on the audio tapes went to the very root of what Justice Harper had to decide – that is, whether the mother had complied with his previous order.Justice Harper’s decision is a good demonstration of the balancing act that courts will engage in when deciding whether to admit audio tapes in a family law proceeding. This decision makes it clear that while surreptitious recording is to be discouraged, there are certain circumstances where it would be an injustice to prevent the recordings from being used as evidence at trial. This case is good example of a situation where the probative value of the recordings clearly outweighed the prejudicial effect of admitting them.