“Mrs. Sinclair relied heavily on the early case of Reddick v. Reddick, [1997] O.J. NO. 2497 (Gen. Div.) in which surreptitious recordings made by the mother were admitted as the court found that they were relevant, reliable, and they had probative value relating to the best interests of the children.
Since the decision in Reddick, however, the case law has developed to support a more robust general exclusionary discretion wherein the court can exclude surreptitious recordings where the probative value is not outweighed by the significant, presumptive prejudice to the administration of justice: Sordi v. Sordi, 2011 ONCA 665; Turk v. Turk, 2015 ONSC 3165; De Giorgio v. De Giorgio, 2020 ONSC 1674; Van Ruyven v. Van Ruyven, 2021 ONSC 5963.
As Sherr J. stated in the oft cited case of Hameed v. Hameed, 2006 ONCJ 274, at para. 13: “The party seeking [to admit surreptitious recordings] should establish a compelling reason for doing so”.
In De Giorgio, MacKinnon J. referred to an article written by Professor Martha Shaffer which speaks to the wide-ranging impact that the admission of this evidence can have on the parties, their children and the administration of justice as a whole:
12 Building on Professor Rollie Thompson’s statement of three core purposes in modern family law: (1) to assure the best interests of the child; (2) to reduce conflict; and (3) maintain, restructure and encourage family relationships, Professor Shaffer argues that systemic prejudice will always be present in relation to the admission of surreptitiously obtained evidence in family cases, since its admission “undermines the goals and core values of family law” and, “to use language borrowed from the Charter context, the admission of surreptitiously obtained evidence brings the administration of justice into disrepute.” In her article, Professor Shaffer elaborates that:
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- the violation of privacy inherent in these acts is more likely to increase conflict and to reduce the prospect that the parties will be able to work together in the future;
- surreptitious recording of third-party professionals gives rise to systemic prejudice from the chilling effect admission may have on professionals involved in family disputes; and
- admitting evidence obtained through deceitful practices sends the wrong message by appearing to reward the behaviour and to condone deceit.
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13 Professor Shaffer then discusses case specific forms of prejudice that can arise, both in the form of harm to the expediency of the trial or harm to one of the parties, or to a child. She identifies some examples:
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- large volume of surreptitiously obtained material that unnecessarily prolong the case, in and out of court, with added costs to parties;
- infliction of emotional trauma to a parent or child; and
- potential detriment to specific relationships in the family.
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14 Professor Shaffer’s review of the case law supports her conclusion that the combination of case specific prejudice and negative systemic prejudice results in the need for a higher probative value of surreptitiously obtained evidence for it to offset the prejudicial effects.
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.
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, at para. 41.
This presumption is arguably and appropriately even more difficult to rebut when the recordings are of professionals working with the family. I also concur with Zisman J. in L.R. v. Children’s Aid Society, 2020 ONCJ 22 (OCJ), aff’d at 2020 ONSC 4341 (Div. Crt.) when she held:
[53] The systematic harm to the administration of justice and to the family law system in general of permitting a party to secretly record a third party professional who is attempting to help a child and parents far outweighs any probative value that the admission of such evidence could possibly provide.
See also: Fattali v. Fattali 1996 CanLII 7272 (ON SC), [1996] O.J. No. 1207 (Gen. Div.); F.(J.) v. C.(V.), (2008), 2000 CanLII 22521 (ON SC), 8 R.F.L. (5th) 45 (Ont. SCJ).”
Wilson v. Sinclair, 2021 ONSC 8345 (CanLII) at 14-20