Text messages are often used in family court, and can be used as evidence towards custody and access. However, where the text messages have been used without permission, judges have split on whether or not they should be admissible. A judge’s analysis of admissibility generally turns on “probative value vs. prejudicial effect.” In other words, judges will determine if the usefulness of this evidence will outweigh the harm it may cause one of the parties. “Usefulness” is associated with the best interests of the child. Unfortunately, it is impossible to know for sure if a judge will hold in favour of admitting illegally obtained messages. However, many judges start from an exclusionary standpoint, as they do not want to foster the inherent mistrust that is present in many family law matters. From this position, judges may decide that a litigant will have to show a very compelling reason to admit communications that were received improperly.
See:
Hameed v Hameed – paragraph 13:
[13] The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so. The reasons that the father put forward in this matter fall well short of this standard.
Sordi v Sordi – paragraphs 11-12.
[11] In my view, there was nothing unfair or improper about the conduct of the trial. Specifically, there is no reason to question the exercise of the trial judge’s discretion not to admit the proposed evidence about which the appellant complains. [12] With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issues before him.
