Can I record my ex-spouse and use it in my Family Court Proceeding?

Recorded communications between parties will only be admitted as evidence if the communication is with the person recording it and not with a third party.  Recorded communications by a third party may be admitted as evidence if the person being recorded is made aware that they are being recorded.  There are limited situations where an illegally obtained recording may be admitted into evidence where the probative value to a judge outweighs the prejudice to the person being recorded.

Generally, Judges do not admit recordings of conversations between parent and child or between parents and third parties like doctors or supervisors.  Recordings are also excluded unless the issue before the judge is the parties’ interaction post-separation.   Specifically:

• Whether the parties can speak civilly to each other (without threatening or anger);
• Whether a party berates the other party in front of the child;
• Whether the other side is lying under oath or is disobeying a court order;

Judges admit recordings if it is the only way to know the truth about the parties’ interactions regarding the children.  Judges encourage the use Emails, texts and communication books since they provide a permanent record of the parties’ interactions and encourages the parties to be on their best behaviour.

​A good rule of thumb is to always assume that your communications between the other party, whether written or by telephone, are recorded and such recordings can be used against you in court.  In addition, you should always discuss with your lawyer your intention to record your ex prior to doing so.