When parents are going through a divorce or separation, there can be significant negative feelings that they have towards each other, and they may be quite critical of how the other parents or behaves in the presence of their children. Mobile phone technology is such that most people walk around with cameras in their pockets, meaning conversations can be recorded easily and directly. A parent who is trying to catch the other in a moment of poor parenting may try to decide that doing so secretly with their phone might help in their attempt to convince the court that the other parent isn’t suitable. But as we see in a recent decision from the Ontario Superior Court of Justice, such evidence is not necessarily something the courts will allow.

Child consumes marijuana that belonged to the father

The parents began to live together in 2014 and were married in 2017. They had their son in the summer of 2017. They went through a separation in June 2019, and the father moved out of the home. At this time, the parents entered into a parenting arrangement where the child stayed with the mother for nine days and the father for five days during a two-week period. The father said he wanted to have equal parenting time, but agreed to a different schedule at the mother’s behest.

The parents tried to get back together in March 2021. The father said the mother then quit her job, and eventually physically assaulted him and would argue with him in front of the child.

The mother said that when the father returned home, he had changed. She said he became a regular user of marijuana and “magic mushrooms.” The parties separated again at the end of July 2021. Later that summer, the child consumed a small piece of a marijuana cookie that the father had left in his toiletry bag in the bathroom. The child was taken to the hospital and the mother took the child with her to her parents’ home.

The parties came to the court each looking to change their current parenting time schedule, and each one of them claimed the other had acted inappropriately when parenting. The court was left to determine whether it would hear the recordings they made.

The law around secret recordings

Each of the parents wanted the court to hear cellphone recordings they had made of the other parent. The court stated that the law around whether secret recordings should be admitted. Generally speaking, if the evidence is not hearsay, and it’s relevant, it can be admitted. However, the interests of the public and justice must also be taken into account. The court stated that in family law, the courts have been more reluctant to allow surreptitious recordings of spouses. A 2006 decision stated,

“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.”

The court agreed in this case, stating that allowing surreptitious recordings leaves a wide scope for potential abuse, in part because the reliability of such evidence can be difficult to determine.

Stating that the best way to approach whether to allow such recordings is to determine whether the prejudicial effect of them outweighs their probative value. In this case, the court determine that the recordings, which were about who was responsible for the child consuming the cookie, were not important enough to admit.

At NULaw, our experienced family lawyer can guide you through the process of making post-separation and post-divorce amendments. Contact us online or at 416-481-5604 to book a consultation, discuss your options, and ensure that you and your children are protected in changing circumstances.

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