When engaged in a family law dispute before the courts, the question of what type of evidence is permitted to be reviewed by the court often arises. In particular, there is some confusion surrounding whether or not one party may be able to introduce secret or surreptitiously made recordings of the other party to the dispute. Fortunately, the B.C. Supreme Court recently had occasion to address this very issue and clarify the circumstances in which such recordings may be accepted into evidence in family law proceedings.

The Parties Dispute Whether They Were “Spouses”

In Fleury v Budd, the main issue in dispute was whether or not the parties were actually “spouses,” as that term is defined by section 3 of B.C.’s Family Law Act. If they were found to be spouses, then the court would have to assess the appropriate division of property between the parties and any entitlement to spousal support on a going-forward basis. During the proceedings, an ancillary issue of domestic violence arose, wherein the claimant asserted that she had been subjected to family violence at the hands of the respondent. In furtherance of this claim of violence, the claimant offered the court 30 secret audio recordings she had made of conversations between herself and the respondent. The court was then tasked with determining whether such secret recordings would be accepted into evidence.

The Court Reviews the Evidence

The claimant alleged that she had endured multiple instances of psychological and emotional abuse at the hands of the respondent, as well as one incident of physical abuse. In support of the claims of emotional and psychological abuse, the claimant offered 30 separate recordings she made at various points in time from April 2020 through September 2021. Each of the recordings, which were of varying length, had been made by the claimant using her iPhone or iPad, neither of which device she still owned at the time of the trial. The claimant contended that she had preserved the recordings by sending them to herself using the AirDrop feature available on Apple products. The claimant acknowledged that she had made the recordings secretly, as she had not advised the respondent when she undertook any of the recordings.

The court reviewed each of the secret recordings. It grouped them into five broad categories: recordings which were relevant to the issue of whether the parties’ relationship was “marriage-like,” recordings which pertained to the allegations of family violence and abusive conduct on the part of the respondent; recordings related to the credibility of one Mr. Dengler, whom the respondent was expected to call as a witness on his behalf; recordings related to the respondent’s post-separation conduct; and recordings relevant to the respondent’s alleged drug use during the tenure of the parties’ relationship.

The Legal Principles Regarding Allowing Surreptitious Recordings in Family Law Proceedings

From the outset, the court noted that “[t]he practice of secretly recording a party for use in a family law proceeding has been repeatedly described as odious and one that ought to be discouraged” as it “undermines the general objectives of family law and admitting such recordings has the potential to erode trust, increase conflict and hinder the restructuring of family relationships.” The court also noted that using secretly made recordings in family law proceedings “is prejudicial because its admission comes at a high cost to the core values of family law and has the potential to bring the administration of justice into disrepute.”

Having said that, the court also noted that surreptitiously made recordings are not altogether banned from use in family law proceedings in B.C., as it is possible for circumstances to arise in which the probative value of the recording outweighs its prejudicial effect. As such, courts have the discretion to decide whether or not to accept such evidence as admissible. The test to be employed by the court in assessing whether or not to exercise that discretion is as set out by the court in Finch v Finch, and it requires that the following four criteria be satisfied for such evidence to be deemed admissible:

  1. the recording must be relevant;
  2. the participants must be accurately identified;
  3. the recordings must be trustworthy; and
  4. the court must be satisfied that the probative value of the recordings outweighs its prejudicial effects (at para 25)

The Court Applies the Test of Admissibility to the Evidence in Question

In applying the Finch test to the secret recordings in this case, the court quickly pointed out that the parties did not dispute that the recordings portrayed the two of them in conversation on various occasions. As such, point two of the criteria was easily satisfied. As for the trustworthiness of the recordings, the respondent argued that the recordings were unreliable because several of them did not portray the entirety of the given situation, in that only ‘snippets’ of several conversations had been recorded, thus omitting some much-needed context as to what happened before and after the recorded portions. However, the respondent could not provide evidence that the recordings in question had been digitally altered or manipulated in any way, shape or form, which meant that they were trustworthy.

Turning to the relevance of the recordings, the court noted that even the respondent had not suggested any recordings were irrelevant in that they depicted the parties’ relationship at various points over a year. As such, they were accepted by the court as being relevant to the matters at issue in the overall litigation.

Regarding whether the probative value of the recordings outweighed their prejudicial effect, the respondent relied heavily on the fact that the recordings had been made secretly in arguing that the “odious nature of this practice [is] indicative of significant prejudice.” He encouraged the court to find that the recordings should be banned because they had been made secretly. However, the court noted that if it were to accept the respondent’s argument, then that would mean that surreptitious recordings would, in effect, be presumptively inadmissible in all instances, a conclusion which the court viewed as “inconsistent with the limited nature of the Court’s discretion to exclude relevant evidence” and a departure from the vast majority of previous case law, which recognizes the court’s role in weighing probative value versus prejudicial effect in assessing admissibility of evidence. As such, the court evaluated each recording independently to determine whether the probative value outweighed any potential prejudice resulting from accepting such evidence.

Does the Probative Value of the Recordings Outweigh Their Prejudicial Effects?

The court reviewed the recordings in the five broad categories outlined above. Regarding the recordings relevant to the nature of the parties’ relationship, the court was satisfied that, since the central issue of the litigation was whether the parties were in a marriage-like relationship, these recordings went to the heart of the matter and were thus significantly probative. All such recordings were admissible into evidence.

With respect to the recordings made in support of the allegations of family violence, the court noted that allegations of violence and abuse, including intimate partner violence, are precisely the type of serious accusation which could outweigh prejudicial effect, given the historical difficulty victims have in proving such allegations. In the result, the court was satisfied that, with two exceptions, the recordings related to allegations of family violence “bear directly on the nature and extent of psychological and emotional abuse alleged by the claimant in this case, including incidents of intimidation, coercion and threats by the respondent.” Thus, with limited exceptions, the recordings related to allegations of family violence were deemed admissible.

Turning to the Dengler recordings, the court noted that the credibility of an anticipated witness is “only tangentially relevant to collateral issues” and, as such had limited probative value. Their potentially prejudicial effect did not outweigh that limited probative value, so all of the Dengler recordings were excluded from admission into evidence.

As for the recordings related to the respondent’s post-separation behaviour, the court found that their prejudicial effect outweighed any probative value these recordings had, except for a recording where the respondent denies that he is abusive but admits to losing his temper with the claimant. The court was satisfied that one recording was significantly probative, given that the respondent appeared to be admitting to some abusive behaviour, and for that reason, that one recording was deemed admissible.

The final category of recordings, the ones which related to the respondent’s drug use, were categorically deemed inadmissible. The court was satisfied that the probative value of these recordings was limited because the respondent himself did not deny his struggles with drug use and also because several of the recordings had been made at times when the respondent was particularly vulnerable and known by the claimant to have been so at the time she made the recordings. Given that the respondent’s drug use was known to the claimant at the time she made those recordings, the court found their prejudicial effect far outweighed any probative value they may have had.

Contact the Vancouver Family Lawyers at Meridian Law Group for Advice on Your Family Law Dispute

The family law lawyers at Meridian Law Group are experienced in assisting clients in navigating the choppy waters of family law disputes. Whether your dispute relates to domestic agreements, family violence, parenting issues or property division, Merdian Law Group’s family law lawyers have the knowledge and expertise to guide you through the process, ensuring your rights are preserved and protected at every step.

Contact a family lawyer at Meridian Law Group today, either online or by telephone, at (604) 687-2277 to schedule a confidential and comprehensive meeting with one of our capable team members. Meridian Law Group, with offices located in downtown Vancouver, is proud to serve clients throughout the province of British Columbia.