Recordings

Many clients inquire as to whether they can use a recording of the other party made without his/her consent as evidence in Court. These recordings are often referred to as surreptitious recordings.

There is no universal yes or no response to this question. The answer is that it simply depends.

It is not legal to record a conversation between your spouse and another person without their knowledge. This is not a method of collection of evidence that is generally supported by the courts.

A court, however, must weigh the fact that such a recording ought to be inadmissible according to the laws of evidence with the fact that the recording may be extremely relevant. A court must determine if the content of these recordings are of "sufficient probative value, and if ... the probative value outweighs the policy considerations against such recordings" (Scarlett v. Farrell). A court will conduct this analysis being mindful of the fact that a court must make decisions about the best interests of children "based upon sufficiently probative evidence that may be available to the court" (Scarlett v. Farrell).

For instance, if a surreptitious recording is presented to a court, evidencing that a parent has been abusive to a child and the court otherwise would not be made aware of this fact, a judge may admit this type of recording into evidence in such a case.

To learn more about these types of recordings as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation with a lawyer at Krol & Krol today.