Divorce, Separation, and Surreptitious (Secret) Recordings
“One cookie and just a nibble or two. That is all that it took to weaponize the parties’ separation. Unfortunately, it was not just an ordinary cookie. It was one laced with marijuana. And the person who took that nibble or two was the parties’ four-year-old child…” A secretly obtained recording later revealed it.
This paragraph may sound like the opening to a crime-fiction novel, but it is, in fact, a direct quote from The Honourable Justice Kurz in Van Ruyven v. Van Ruyven, a real-life family law case.
The couple’s child ingested part of a marijuana-laced cookie. The panicked mother rushed her to the hospital, furious at the father for keeping such items in their home. To make matters worse, the father allegedly appeared indifferent to the incident, further fueling the mother’s anger.
A History of Conflict
The marijuana cookie incident was just one of many serious disputes between the parties. The case record also details that:
- The mother had previously punched the father in the face multiple times, leaving him with a black eye and a cut.
- She threatened to teach their child to hit the father if he “misbehaved.”
- The father was accused of leaving a loaded pellet gun in the home.
- The father, in turn, accused the mother of forcing the child to eat the cookie to fabricate grounds for sole custody.
Clearly, tensions were high, and cooperation was scarce.
Secret Recordings: A Common but Risky Strategy
In such a hostile environment, both parents attempted to gain an advantage by secretly recording each other.
- They used their phones to record conversations without the other’s knowledge.
- The mother even went as far as hiding GPS tracking devices in the father’s gym bag and vehicle.
Ironically, both parties argued that only the other was wrong for making secret recordings—a contradiction Justice Kurz pointed out with some amusement.
Are Secret Recordings Admissible in Divorce Court?
The court refused to admit the secret recordings as evidence. Justice Kurz stressed that family law courts must be cautious in allowing such recordings, as doing so could set a dangerous precedent.
Why? Because encouraging secret recordings undermines the very essence of cooperative conflict resolution. If spouses believe that every conversation is being recorded in secret, trust breaks down, making it even harder to negotiate fair settlements.
To put it simply: secret recordings don’t make friends, and they certainly don’t help resolve family disputes.
Admissibility of Surreptitious Evidence
After the above discussion, you may still have a question whether courts admit secretly recorded evidence or not, and if yes, when?
Although as a general rule, the Courts are reluctant to admit surreptitious evidence, this rule is not an absolute one. Courts do have a discretion to make a determination on whether probative value of surreptitiously obtained evidence outweighs public policy considerations set out above.
What the Court Decided
Justice Kurz issued a clear ruling:
- Neither parent is allowed to record the other without explicit, prior consent.
- Any recordings made must be for personal or family use only.
- Both parties must remove all hidden recording or tracking devices from their home, belongings, or any place where they could monitor the other party.
Key Takeaways
If you’re going through a divorce or separation, it’s important to understand that courts generally frown upon secret recordings. Instead of trying to collect covert evidence, focus on legal strategies that uphold your credibility and protect your rights. However, if you believe that probative value of the surreptitious evidence outweighs the public policy considerations, talk to your lawyer as they will be in a much better position to determine the merits of such proposition.
Need Legal Guidance?
If you are concerned about your spouse secretly recording you or have questions about protecting yourself in a family law dispute, contact Progressive Legal Solutions today. Our experienced legal team is ready to help you navigate your case with clarity and confidence.