Clients often inquire as to whether recordings taken surreptitiously (in other words, recordings taken without the knowledge or consent of the other person/people being recorded) can be viewed and considered by a judge in Family Court. Typically, the intention behind the question is not harmful or malicious, it is strategic and simply relates to a desire to ensure that the best evidence is made available to the court.
It is important to start this discussion by stating that judges, across the board, discourage this practice. In a recent decision (La France v. Saroli, 2026 ONSC 1783 (hereinafter, “La France v. Saroli”), Justice Centa held that, in Ontario, surreptitiously obtained evidence is presumptively inadmissible given that “the case-specific and systemic prejudicial effects almost always outweigh the evidence’s probative value.”
However, that is just the starting point. Although the consensus is that this is a practice to be discouraged and the presumption is that the evidence will be excluded, there are occasions when secretly obtained audio/video recordings or text messages may be admitted into evidence. As stated by Justice Centa, it can be considered where the “probative value of the recordings (or other evidence) outweighs the prejudicial effects” (para. 43). Judges have significant discretion in deciding if, in any given case, the evidence is so crucial and important that it would be unfair or unjust to ignore it.
In La France v. Saroli, Justice Centa was confronted with the admissibility of four surreptitious recordings captured by one common law spouse during conversations with her ex-spouse. Justice Centa ultimately admitted the recordings and gave them appropriate weight, after considering the following criteria:
1. Is the evidence relevant to a matter at issue?
2. Is the evidence subject to an exclusionary rule?
3. Should the evidence be excluded because the prejudicial effect of the evidence outweighs its probative value?
Justice Centa was satisfied that the recordings contained relevant and material evidence. There was no exclusionary rule that applied to prevent the court from admitting the recordings. However, another important factor that favoured admitting the evidence was the fact that there were no children involved in the case and no children were recorded. As held by Justice Centa, “(t)he court will always be reluctant to admit surreptitious evidence of children or professionals” (para. 47). Other factors that tipped the scale towards admission were that the recordings were neither lengthy nor numerous; they were provided to opposing counsel in advance (i.e. not a situation of trial by ambush); and there was no risk of inflicting emotional trauma on the spouse who had been surreptitiously recorded. In those circumstances, the court held that the recordings had high probative value and the systemic and case-specific prejudice was only modest.
Therefore, the short answer to the question is that it will depend on the specific facts of the case and what evidence is sought to be introduced. While the starting point is that the evidence is inadmissible, there are situations where judges can, and have, considered it.
It is imperative to note that this article only deals with the admissibility of surreptitious recordings in family law proceedings. It must be kept in mind that subsection 184(1) of the Criminal Code makes it a criminal offence to knowingly intercept a “private communication”. While a person may generally secretly record a conversation in which that person is genuinely participating, without breaching subs. 184(1) of the Criminal Code, secretly recording conversations or actions by a spouse or child with a third party, which do not involve the person recording, could well result in criminal charges.
All of the above is provided for informational purposes only and is not to be considered legal advice. Please ensure that you consult a lawyer in regard to your particular circumstances.
Giggey & Despatie LLP | 613-936-1800 | alexis@giggeydespatielaw.ca | www.giggeydespatielaw.ca
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