Secretly recording a conversation can seem like an easy way to preserve evidence during a separation. A spouse may want a record of what was said about parenting, finances, support, or another important issue. However, the fact that a person can technically make a recording does not necessarily mean that doing so is advisable, admissible, or free from privacy concerns. Ontario families should understand the distinction between the criminal law rules governing interception of communications and the separate considerations that may arise in family court.
Ontario’s Rules on Recording Private Conversations
Canada generally permits a person who is participating in a private conversation to record that conversation without obtaining the other participant’s consent. This is commonly referred to as one-party consent. The rules can become more complicated when someone records a conversation in which they are not participating or uses technology to capture communications without being present. The circumstances surrounding the recording matter.
One-Party Consent and What It Means
One-party consent means that, in general, a participant in a private conversation can consent to the recording on behalf of the conversation. This does not create an unlimited right to record everything that happens around another person. For example, secretly placing a recording device somewhere to capture conversations between other people raises different legal and privacy considerations.
Recording Your Spouse or Former Partner
A person may record a conversation in which they are personally participating, including a conversation with a spouse or former partner. However, repeatedly recording someone can still create relationship, privacy, and litigation concerns. If recordings are being made to document important discussions, it is important to consider whether there is a less contentious way to preserve the same information.
Recording Conversations Involving Children
Recordings involving children require particular care. A parent who is personally participating in a conversation with their child may be able to record it, but the broader family-law context matters. Recording children to gather evidence about the other parent can also expose children to adult conflict and may become relevant when the court considers parenting arrangements and the parents’ ability to support the child’s relationship with the other parent.
When Recordings May Become Evidence in Court
A recording may potentially be presented as evidence if it is relevant and can be properly authenticated. The court may consider what was recorded, how it was obtained, whether it is complete, and whether it fairly represents the conversation. Simply having a recording does not guarantee that it will be given significant weight.
Privacy and Family Law Considerations
Family law disputes often involve highly private information, including conversations inside the home, communications with children, and personal relationships. Even where a recording is not prohibited by the criminal law, privacy and family-law considerations can still matter. Parties should be cautious about recording or distributing private conversations simply because technology makes it easy to do so.
Secret Recordings Versus Surveillance
A secret recording made by a participant in a conversation is different from surveillance designed to monitor another person’s activities. Surveillance may involve cameras, tracking devices, recording equipment, or other technology used without the person’s knowledge. The legal and privacy issues can be significantly different depending on what is being recorded, where it occurs, and how the information is obtained.
Risks of Editing, Sharing, or Publishing Recordings
A recording should not be edited in a way that changes its meaning or removes important context. Selectively sharing portions of a conversation can also create a misleading impression. Publishing private recordings online or distributing them to friends, family members, employers, or others can create additional legal and privacy concerns even if the original recording was lawfully made.
How Courts May Assess the Reliability of Recordings
When a recording is introduced in a family law proceeding, questions may arise about its authenticity, completeness, context, and relevance. A court may consider whether the recording accurately captures the conversation and whether the circumstances surrounding it affect the weight that should be given to the evidence. Keeping the original recording can therefore be important.
Safer Ways to Document Important Communications
In many situations, written communication can provide a more straightforward record of important discussions. Email or text messages can document agreements about parenting schedules, expenses, exchanges, and other practical matters. Following up an important verbal discussion with a neutral written summary can also help reduce misunderstandings without creating the same concerns associated with covert recording.
Secret recordings can raise complicated questions in Ontario family law. The fact that a participant may legally record a conversation does not mean every recording strategy is appropriate, useful, or risk-free. Before relying on recordings as evidence or using technology to monitor another person, it is important to understand the circumstances, privacy implications, and potential impact on the family law dispute.
Join our free webinar, Secret Recordings in Ontario – When Are They Legal?, on November 10 at 5 PM ET.
