• by Samantha Rich
Originally published in the OFLM 2024-05 edition
Overview
Justice Vella’s costs endorsement in Kralka v. Courtis (2024 ONSC 1761), serves as a reminder of the court’s disapproval regarding surreptitious recordings in family law proceedings. Kralka also warns us that the use of surreptitious recordings could have negative cost consequences. It is noteworthy that a significant factor in not awarding costs to either party was the fact that the parties surreptitiously recorded one another for the purposes of the motion.
Surreptitious video and audio-recording in the context of family law proceedings has unfortunately become a ubiquitous practice by litigants. The reality is that when parties record one another in a misguided attempt to obtain “evidence”, all it achieves is adding fuel to the proverbial fire.
Still, the courts have admitted certain video and audio-recordings where the probative value outweighed the prejudicial effects and policy considerations against encouraging surreptitious recordings.
Background in Kralka v. Courtis
In Kralka v. Courtis, the Applicant father sought costs on a full indemnity basis in the amount of $15,671 arising from a parenting motion. The Respondent mother claimed costs on a partial indemnity basis in the amount of $13,715, claiming she achieved substantial success.
One of the preliminary issues was the admissibility of surreptitious recordings into evidence. The father sought to submit surreptitious recordings of the mother and the mother sought to submit her own surreptitious recordings of the father into evidence - but only if the court ruled that the father’s surreptitious recordings were admissible.
Justice Vella reviewed the offers to settle that were exchanged by the parties and found that neither party obtained a result that was as good as or better than the motion result. Importantly, Justice Vella held that a significant factor weighing into the costs analysis was the fact that the parties surreptitiously recorded each other for the purposes of the motion. Consequently, she did not award costs to either party.
Surreptitious recordings are strongly discouraged
While surreptitious recordings are sometimes admitted for their probative value, the general consensus according to the current jurisprudence is that surreptitious recordings are not encouraged in family law proceedings.
Justice Vella noted that the father’s video was recorded for the purpose of portraying the mother in an unflattering light during the course of a particularly emotional argument in order to gain advantage in the litigation. It should be noted that the argument did not take place in front of the child. She held at paragraph 10 that:
This practice is not in the best interests of their child because it fosters an environment of deceit, inability to trust, and constitutes a significant roadblock to having candid and productive discussions about parenting decisions in the best interests of the child…
As stated by Justice Pazaratz in his decision of KM v. JR (2022 ONSC 111), “From the court's perspective, surreptitious recordings in family law matters are strongly discouraged and are often not admitted into evidence. The court retains the discretion to determine whether the recording's probative value outweighs the strong policy factors that lean towards its exclusion.” (at para. 198)
Therefore, there is a high threshold to be met in order to have a surreptitious recording admitted into evidence in family law proceedings. The content of the recording will be carefully scrutinized to determine whether its probative value warrants departing from the policy considerations discouraging recording one’s partner without their knowledge or consent.
The negative sentiment regarding recordings in family law has endured for at least two decades. Justice Pazaratz cited Justice Sherr’s decision of Hameed v. Hameed (2006 ONCJ 274), sharing the view that surreptitious recordings by litigants in family law matters are strongly discouraged as they tend to heighten feelings of mistrust which are not conducive to rebuilding trust between families post separation:
... Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process. (at para. 11)
The rule is not absolute
The courts have held that if the content of the recording is of sufficient probative value, and if the probative value outweighs the policy considerations against such recordings, then the court will admit the recordings into evidence.
Justice Vella acknowledged that there may be circumstances when a surreptitious recording may be ultimately justified. She stated that, “Such circumstances may be present when there is an act of intimate partner violence which often occurs behind closed doors and is witness-less.” (Kralka v. Courtis, at para. 11)
Other examples of when a surreptitious recording may be admitted into evidence are where the misconduct is serious, and the probative value of the evidence directly raises credibility issues (Pantin v. Pantin, 2021 ONSC 6651, at paras. 16-19).
It is also more likely that a recording may be admitted into evidence if the recording does not involve the children (Pantin v. Pantin, 2021 ONSC 6651, at para. 20).
Justice Spence in the decision of Scarlett v. Farell (2014 ONCJ 517) summarized the case law in the area of surreptitious recordings in family law proceedings at paragraph 31:
Although these cases may seem to take different approaches to the admissibility of surreptitious recordings of family conversations or events, in my view, all of the cases can be reconciled with one another. All the cases recognize the general repugnance which the law holds toward these kinds of recordings. However, at the end of the day, the court must consider what the recordings themselves disclose. And if the contents of those recordings are of sufficient probative value, and if, as Justice Sherr stated, the probative value outweighs the policy considerations against such recordings, then the court will admit them into evidence. It will do so having regard to the court’s need to make decisions about the best interests of children based upon sufficiently probative evidence that may be available to the court. (emphasis added)
In order to rebut the presumption against admitting surreptitious recordings into evidence, the recording must be “central to the need to do justice”. As summarized by justice Chozik in Melek v. Mansour (2022 ONSC 6688) at paragraph 116:
In order for a surreptitious recording to be admitted, the probative value must outweigh the significant, presumptive prejudice caused by the surreptitious recording. As explained by Kurz J., 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"…
Justice Finlayson in SCH v. SR (2023 ONSC 4928) noted at paragraph 605 of his decision that, “A recording will be probative if it is both reliable, and relevant to a particular substantive issue in the case, and sometimes, to credibility.”
It is highly unlikely that surreptitious recordings will be admitted into evidence for the mere purpose of portraying one’s partner in an unflattering light.
Policy considerations
Justice Kurz in his decision of Van Ruyven v. Van Ruyven (2021 ONSC 5963) held that the only way that judges can effectively discourage such conduct is to refrain from rewarding it, i.e. by not allowing surreptitious recordings to be admitted into evidence in family law proceedings. He stated at paragraphs 40 – 41 that:
It is dangerous to the state of family law and more importantly, to the parties and children governed by it, to treat their dealings as if they were living under the Stasi in East Germany. Not everything is public and not every utterance or gesture needs to be recorded. To the contrary, routinely allowing our courts to reward a party's attempt to secretly spy on the other by admitting the fruits of that conduct into evidence contributes to the corrosiveness of matrimonial litigation. That approach must be discouraged. (emphasis added)
…
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. (emphasis added)
One of the issues when assessing the probative value of surreptitious recordings is the fact that we do not always have the context. Justice Fowler Byrne in Pantin v. Pantin (2021 ONSC 6651), stated at paragraph 14 of her decision that, “I agree with the preponderance of jurisprudence in this area, which is to reject such recordings as harmful and unreliable. They represent only one moment in time and are not necessarily characteristic of a person in their entirety.”
Justice Kurtz also discussed the concerns relating to the rights of privacy, security, and free expression at paragraph 30 of his decision:
We live in a world of such technological advance that every utterance and gesture is increasingly open to digital capture, whether at a street corner or in a private conversation in one’s home. Privacy experts and advocates are increasingly concerned about the deleterious effects of the unrestrained monitoring of our utterances and behaviour. On the internet, it is said that anything captured can never be forgotten. Provincial and federal legislation has been passed to try to find a reasonable meeting point between the right to information and the rights of privacy, security and free expression. It would be fair to say that the present legislative balance is continually subject to review.
Arguably, one of the most important policy considerations is the fact that this type of behaviour is not child focused. As aptly stated by Justice Pazaratz, “Electronic recording of parenting exchanges is a growing trend which should be strongly discouraged. It puts the child in the middle. It exacerbates tensions and creates a heightened sense of potential or imminent conflict. It clearly demonstrates that the parent holding the camera is focussing more on the litigation than the emotional well-being of the child.” (KM v. JR, 2022 ONSC 111, at para. 210)
Conclusion
One of the reasons cited by Justice Vella for not awarding costs was the fact that surreptitious recordings were taken and adduced for the purposes of the motion by both parties. This serves as a warning to family law litigants to be very careful about recording “evidence” for family law proceedings. Unless there are safety concerns or issues relating to credibility, a surreptitious recording will more likely harm than help your client’s case. Counsel should caution their clients against surreptitiously recording their partners, as this will likely be met with disapproval by the court or worse yet, an adverse costs award. Before attempting to admit a surreptitious recording into evidence, it is prudent to carefully review the recording and your client’s case holistically to determine whether the recording's probative value outweighs the strong policy factors that weigh against its admission into evidence.