Secret recordings in family law. In many family law cases, one party has secretly recorded a conversation between themselves and the other party, or between either of the parties and their children. The question then arises, for whether this evidence is admissible in court.
The case law in this area is divided with regards to the admissibility of secret recordings. On the one hand, the courts actively discourage parents from secretly recording the other parent and the children. These recordings tend to exacerbate conflict between the parties, which makes the proceedings more difficult. On the other hand, the courts have admitted secret recordings into evidence if their probative value outweighs their prejudicial value and the policy considerations against their admission (Scarlett v. Farrell, 2014).
Let’s take a further look as to when the courts allow versus disallow secret recordings into evidence.
While the courts are actively discouraging secret recordings being made in the family law context, in recent years with the heightened use of technology, courts seem to be finding that the probative value of secret recordings outweighs their prejudicial value— specifically where the secret recording illustrates a parent deceiving the court as to their alleged behavior.
For example, in Florito v. Wiggins, 2015, the court admitted the secret recordings into evidence. In this case, the father secretly recorded his conversation with the mother, during access exchanges. The recordings showed that the mother was breaching the court’s order, despite her assertions of the contrary. Here, the admission of the secret recording outweighed its’ prejudicial value, as the court had direct evidence that one party was in breach of their order.
As previously mentioned, courts are actively trying to discourage the use of secret recordings, as they tend to worsen the conflict. An example of where the court declared the secret recording as inadmissible is the most recent Superior Court of Justice decision, Van Ruyven v. Van Ruyven, 2021. Here, the court strongly emphasized their distaste for secret recordings in family law. The court explicitly said that subsequent courts must presume that the prejudicial effect of surreptitious recordings far outweighs their probative value to our system of family law and the best interests of the children (Van Ruyven v. Van Ruyven, 2021)