Family law is incredibly emotional, particularly when it comes to parenting and children’s issues. But there are basic “rookie” mistakes that well-meaning moms and dads make, despite their valiant efforts to present themselves as good parents focused on their children’s best interests.
One of those mistakes is surreptitiously recording your children or your separated spouse.
So many Canadian judges have criticized this practice that it is almost trite law that it should be avoided. For example, Ontario Justice Pazaratz says in Whidden v. Ellwood, 2016 ONSC 6938
“Parents shouldn’t surreptitiously audio record their children. It’s a breach of trust; an abuse of access; and a cheap manipulation of an innocent child. Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (CanLII), 2014 ONCJ 82 (OCJ); Hameed v. Hameed, 2006 ONCJ 274 (CanLII), 2006 ONCJ 274 (OCJ); Jackson v. Mayerle, 2016 ONSC 72 (CanLII), 2016 ONSC 72 (SCJ)”.
A British Columbia judge 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.” (Seddon v. Seddon 1994 BCSC 1062)
The rationale for filming your child during a parenting exchange time is usually done to show one of the following behaviours:
a) The child’s unwillingness to go to the other parent;
b) The child’s eagerness to go to the other parent;
c) The opportunity to present evidence of the other parent’s nastiness, bad language, late arrival, abusive behaviour, etc.
Yes, you will find judges who will admit audio/video recordings into evidence, but the general consensus is that they are rarely useful or necessary for a judge to determine how to determine custody or divide parenting time between parents.
Why do judges dislike audio or video recordings? Because:
a) Parents use recordings to make the other parent look bad, but more often then not it backfires, causing the Court to doubt the judgment of the recording parent;
b) Recording your child or spouse raises doubts about how a fit parent could be so insensitive as to place an innocent child in the middle of an inflammatory situation;
c) The clear message to the child is “Look how bad your mother/father is, so much so that I have to record him/her”.
And yet, clients will continue to ignore the good advice they receive from their lawyers and smartphones will continue to be a part of a warring parent’s arsenal…sad but true.
Lawdiva aka Georgialee Lang