“A tape recording must meet the authenticity requirements of s.34.1 of the Evidence Act. However, here, the authenticity of the electronic record is not seriously challenged by the applicant. I agree with that because of the presumption of integrity created by that section when there is evidence that the device was operating properly. Here, the evidence of the respondent is that she used the recording application on her working iPhone.
However, it is argued that the prejudicial effect of the recording outweighs its probative value because not only is there no opportunity to cross-examine the declarant, but also because of the systemic prejudice that would arise from the admission of secretly obtained evidence in family cases considering how it tends to undermine the core values of modern family law of assuring the best interests of the child, reducing conflict, and of maintaining, restructuring and encouraging family relationships.
When I consider the evidence and the law submitted in writing and orally by the parties, I arrive at the following conclusions.
Dealing firstly with the audio recording, I ultimately find that the probative value of this recorded statement is slight in comparison to the prejudice that might otherwise result should it be admitted, and therefore conclude that it is inadmissible.
The probative value of this recording is directed towards the child’s best interest, her well-being, and whether she is harmed while in the presence of her father. However, the recording is of very poor quality and it is difficult to hear what the child is saying. Too much reliance would be placed on the interpretation of this recording made by the respondent at trial. As a result, it is difficult to assess whether the child spoke spontaneously, all of which impacts not only the reliability, but at the residual stage of the analysis, the probative value of the recording.
As indicated by my colleague, Justice Fryer in Wilson v. Sinclair, 2021 ONSC 8345, at paras 18-19:
[18] The basic test for admitting this evidence has not changed. Rather, since the decision in Reddick, the court has placed a greater emphasis and weight on the presumptive, significant prejudice that must be overcome by a party seeking to admit surreptitious recordings. See Scarlett v. Farrell, 2014 ONCJ 517. [emphasis added]
[19] I concur with Kurz J. when he states: the “presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and the children”: Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at para 41. [emphasis added]”