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by Daniel Gloade on June 3, 2014

Can you make video or audio recordings in child custody cases?  Can you make these recording secretly?  I have reviewed the case law and several themes emerge.

Generally, judges will only admit communications between the parties.  Judges do not admit recordings of conversations between parent and child or between parents and third parties (doctors, supervisors).  The case law is here:  Galle v. De Lorenzo, 2014 ONSC 3040.

Judges exclude clandestine recordings unless the probative value to a judge outweighs the prejudice to the party recorded; A.F. v. J.W., 2013 ONSC 4272

Recordings are excluded unless the issue before the judge is the parties’ interaction post-separation.   Specifically:

Whether the parties can speak civilly to each other (without threatening or anger)

Whether a party berates the other party in front of the child;

Whether the other side is lying under oath or is disobeying a court order;

Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82

Clandestine conversations might violate the criminal law or the other party’s civil rights.  Until now, family law judges acknowledge that these issues exist but have not made decisions regarding them yet.

The recordings must obey the rules of evidence.  The person making the recording must have accurate records of when and where the recording was made.  There must be a transcript from a transcription service (and, if necessary, a third-party qualified translator), the recording must be clear and transcripts and recordings must be sworn into evidence.

It is in the best interests of the children if both parties are parenting them.  To that end, the law wants the parties to have mature conversations about the children.  Avoid making recordings whenever possible, whether clandestine or overt, because it can foster distrust between the parties.   Judges admit recordings only if such admissions is the only way to know the truth about the parties’ interactions regarding the children.

Judges encourage the parents to use Emails, texts and communication books.  They provide a permanent record of the parties’ interactions.  It is best because not only it provides evidence but it also encourages parties to be on their best behaviour.

Always assume that your communications between the other party, whether written or by telephone, are recorded and such recordings can be used against you in court.

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