To Tape or Not to Tape? Surreptitious Recordings in Custody Cases

To tape or not to tape? That is the question. In hard-fought custody cases, litigants often have an uncontrollable urge to tape record conversations between themselves and their former partners, or conversations of their children, all in the hope that the evidence gathered will assist in their goal for custody or expanded parenting time.

The problem that arises is that sometimes tape recordings are relevant and probative and often the only way to effectively buttress a party’s claims, but equally as often, judges will rule surreptitious recordings inadmissible and criticize the parent who records. The dilemma is when to know the difference.

In Turk v. Turk 2015 ONSC 3165 the court considered an affidavit filed by Mr. Turk that contained transcripts of surreptitious recordings of conversations between his children and their mother, taken on the children’s cell phones provided to them by Mr. Turk. Mr. Turk argued that the tapes were admissible to show that his ex’s household was unstable and that she subjected the children to emotional abuse.

The court found that the recordings were inadmissible for the following reasons:

1. Sound policy reasons suggest that surreptitious recordings are the antithesis of trust and security between family members;
2. Their reliability is difficult to confirm;
3. Often the probative value of recordings is outweighed by their prejudicial effect, particularly considering the age of the Turk children, who were 21 years and 17 years old;
4. As the evidence arises from a staged event, its reliability and prejudicial effect on the administration of justice supersedes its probative value.

In a recent case from the United Kingdom, a father and his new spouse sewed “bugs” into his young daughter’s blazer and rain coat in order to record her conversations with social workers appointed to consider a change of custody from her father to her mother. On other occasions, the father would leave an Ipad or IPhone running when his daughter and the social worker met in his home.

Over a period of 18 months the father produced 100 pages of transcribed conversations in an effort to resist a change in the child’s residence to her mother’s.

Ultimately, the court ordered a transfer of custody, finding that the recording of the girl’s conversations was indicative of the father’s inability to meet the child’s emotional needs, albeit the recordings failed to “produce a single piece of useful information” and had damaged relationships between the adults in the child’s life.

Ontario’s Court of Appeal weighed in on the issue of surreptitious recordings in
Sordi v. Sordi 2011 ONCA 665 focusing on the balancing of sound policy to discourage recordings with the probative value of the evidence.

In a case where recordings were both relevant and probative, Justice Bell found that the evidence from the recordings was compelling and admissible in the context of a parental alienation case where the recordings between the mother and her children provided support for the allegations. The odious nature of secret recordings was trumped by the cogent evidence of alienation. Reddick v. Reddick (1997) OJ No. 2497

Family law lawyers are frequently called upon to determine whether recordings should be made and then, whether they should be disclosed, considering whether they are relevant to the issues before the court. This is never a decision to be left to a client.

Lawdiva aka Georgialee Lang