The Legality of Recording Conversations               

 

 

I have had many clients going through high-conflict separations ask me whether they can legally record conversations between themselves and their spouse.  Most people assume it is illegal to do so but this is incorrect.  You CAN legally record a conversation between you and someone else.

 

Why would you want to do this?  In high-conflict custody and access disputes, it is common for one (or both) parties to say things in person that they would never put in writing for fear it could end up in an affidavit.  One solution is to record the conversations.  While no person wants to record every conversation with their former partner out of fear they may say something “incriminating”, this evidence can be invaluable in a he-said, she-said case.

 

Section 184 of the Criminal Code makes it a criminal offence to intercept a private communication using an electro-magnetic, acoustic or mechanical device.  The exception to this is where one party to the conversation consents to it being recorded.  This means that you can record conversations between you and another person without that person’s consent or knowledge.  Because you consent to the recording, you meet the exception carved out in the Criminal Code.  You cannot, however, record a conversation between two other people without their knowledge.  For example, you cannot record a phone conversation between your former partner and your child.

 

There are other ethical and moral considerations when recording conversations, but it is not illegal. You should always ask yourself what you hope to gain from recording the conversation and whether you are prepared for any possible fall out with the other person when they learn you’ve been recording conversations.  My advice to clients is always to communicate in writing because the evidence is more readily available no surreptitious acts are required to obtain it, however, you can legally record conversations in limited circumstances if needed.