“The respondent mother (“the mother”) sought to file audio recordings and doorbell video recordings (from the family’s front door) with the Court as evidence to support her allegations regarding the father’s drinking, driving while impaired, admissions regarding caregiving to the child, and weapons threats. The father states he was not aware he was being recorded and objected to the admission of these video recordings because they are not probative.
Two recordings had not been provided to the father in advance of the hearing date. I stood the matter down for 20 minutes to allow the father and his counsel to review the recordings prior to argument on admissibility.
There is a general principle that audio/video recordings between parents should be strongly discouraged and generally inadmissible: Whidden v. Ellwood, 2016 ONSC 6938, Hameed v. Hameed, 2006 ONCJ 274, Turk v. Turk, 2015 ONSC 3165. In Van Ruyen v. Van Ruyven, 2021 ONSC 5963, at para. 41, Justice Kurz writes:
The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That 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 children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children.
The recordings were attached as exhibits to a stand-alone affidavit sworn by the mother in support of a motion seeking to admit them. This affidavit referred to paragraph numbers in her responding affidavit matching the recording with the event attested to. However, the paragraph numbers were incorrect. During argument, counsel walked the Court through each recording and which paragraph in the responding affidavit to which it related. I note, however, that none of the paragraphs in the mother’s responding affidavit adequately lay the necessary foundation for the recordings. Despite this lack of foundation, I am considering the recordings because of the seriousness of the allegations and because the father, in submissions, acknowledged the recordings were made as the mother purports them to have been made.”
Dieffenbacher v. Baril Dieffenbacher, 2023 ONSC 1597 (CanLII) at 4-7