In the recent decision Heimlick v Longley, the Saskatchewan Court of Queen's Bench considered for the first time since the updates to The Children's Law Act, 2020 and The Divorce Act whether secretly recorded interactions of one parent by another parent are admissible in family law proceedings.
The Law on Surreptitious Recordings in Family Law Proceedings
While there is no absolute rule against the admissibility of secret recordings as evidence in family law proceedings, the presumption is that these recordings are inadmissible. For surreptitious recordings to be admissible, they must meet a minimum threshold of being authentic, unaltered, relevant, and helpful to the Court. Compelling reasons to admit recordings into evidence include whether the recording discloses:
- serious misconduct by a parent;
- a 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.
Traditionally, the Saskatchewan Court of Queen's Bench has strongly discouraged parties from surreptitiously recording interactions in family law matters since they usually require context and interpretation, may only show a snippet of a larger interaction, and promote conflict and mistrust between parties, which can exacerbate, prolong, or raise the cost of family law litigation.
The recent updates to The Children's Law Act, 2020 and The Divorce Act now specifically require Judges to take family violence into consideration when assessing the best interests of the child in parenting orders.
The Facts of the Case
In this recent case, the mother made an application for variation of an existing parenting Order. The Order required the parties to each encourage the development of their child's relationship with the other parent. This requirement included a directive not to make, or allow others to make, derogatory comments about the other parent when the child was present.
Filed with the mother's affidavit was an exhibit. The exhibit was a USB stick containing secretly recorded phone calls between the mother and the father, as well as video recordings of the two parties taken during or following exchanges of the child. Some of these recordings were made by the mother herself while others were made by a neighbour. The father strongly objected to the use of these recordings as evidence.
The Judge's Analysis on the Admissibility of the Recordings
The Court allowed the recordings made by the mother to be admitted, but strongly rejected the recordings made by the neighbour.
The recordings made by the mother were found to be authentic and unaltered. The judge affirmed their value because they spoke to the issues raised by the application and provided evidence of domestic violence. The Court found that the recordings provided evidence of the father's behaviour and verbal conduct towards the mother and held that the mother's choice to record the parenting exchanges was notable in and of itself.
The Court also noted that the father was aware he was being recorded during these interactions and, more importantly, that they provided evidence of family violence relevant for the Court when assessing the best interests of the child.
On the other hand, the recordings made by the neighbour were found to be hearsay and deemed inadmissible. It was also noted that for policy reasons, admitting these recordings would have the negative effect of encouraging neighbours to involve themselves in parenting disputes by surreptitiously recording interactions between parties.
Conclusion
This case presents the first instance where a Saskatchewan court considered the admissibility of surreptitiously made recordings in family law proceedings since the passing of new legislation in 2020.
In order for surreptitious recordings to be admissible in family law proceedings they must meet a minimum threshold of being authentic, unaltered, relevant, and of probative value in that they provide evidence of 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
