The Admissibility of Surreptitious Tape Recordings as Evidence in a Custody Review

F. (A.) v. W. (J.)

This case involves a rare decision where tape recordings made without the subjects’ knowledge were allowed as evidence in a custody proceeding.

Background & Prior Orders

In a 2011 custody hearing, Justice Harper became increasingly concerned by AF’s emotional manipulation of her three children that distorted their feelings regarding their father, JW. AF had physical custody of the children whose ages ranged from 9 to 11. He noted how she expended great effort to impose her antagonistic feelings for JW onto the children’s’ relationship with him. By the time of the hearing, AF had warped their perceptions of their father to the point that they were unreasonably fearful, distrustful, and actively hostile.

However, Justice Harper believed that having a positive relationship with both their parents was in the children’s best interests and was unwilling to sever the possibility of repairing the paternal connection. He made an order declaring that both parents had an obligation to promote the other parent to the children and prohibited all conduct that might imply to the children that their father was someone to fear and disrespect.

Custody Review

Two years later in the case at hand, Justice Harper reviewed the custody order and examined evidence to determine whether the June 2011 orders were complied with.

Through affidavit evidence, he finds that the AF did not end her manipulative behaviour. Despite her claims of being supportive of the children’s involvement with JW, her conduct on numerous occasions demonstrated otherwise.

Tape Recorded Evidence

During the trial of the review, Justice Harper conducted a voir dire – a hearing separate from the review proceedings – to determine whether two tape recordings of access exchanges made by JW could be admitted as evidence.

The first recording involved an incident where AF was verbally abusive towards JW while the children were present. Her increasing hostility during the confrontation influenced the children to mimic her aggression towards him. The record captured the children’s subsequent tearful and angry exchanges with JW. Justice Harper drew an inference that the mother’s conduct gave the children permission to be continually abusive, cruel, and disrespectful of their father.

In the second recording taken during an access exchange, AF reframed JW’s parenting decision of keeping junk food locked away into a story of him depriving the children of food and water. She deliberately raised the matter in the children’s presence to reinforce their perceptions of an abusive father. Her continuous statements that “kids need food” worked them into a frenzy as they became scared that JW would not feed them during access visits. When AF refused to stop when asked, JW stated he would call the police to assist with access exchange. The mother took this opportunity to further frighten the children by implying that she would be arrested because of JW, further deepening their distrust and resentment of him. Justice Harper found this ghastly example of the mother’s emotional manipulation to be horribly abusive.

Prior case law has held that secret recordings made by a litigant should be discouraged in family law matters. However, after assessing the balance between the possible value of the recordings and their reliability versus the prejudice against the mother, Justice Harper ruled that the recordings were admissible.

His ruling allowing the tapes as evidence was based on his belief that the children’s best interests were at risk. The recordings revealed that while AF was outwardly compliant with the June 2011 orders, it was merely a deception that masked her conduct from others.

Rationale for Admissibility

The case is not to be read as a blanket pass to secretly tape record conversations to be used as evidence. This was a highly extreme situation of alienating and abusive manipulation; AF was essentially teaching her children that they were entitled to hate and disrespect their father. Her conduct was psychologically damaging to the children as the spite for their father manifested in their cruel treatment of JW’s dog and threats of self-harming behaviour.

Justice Harper only admitted the recordings because, as a child custody matter, the content of the evidence was highly relevant to protecting the children’s interests and preventing the mother from further poisoning their mind – a form of emotional abuse that was definitely a sufficiently compelling reason to allow admission. As JW could be heard desperately trying to civilly end the hostile situations in the recordings, Justice Harper accepted that he was not seeking to entrap the mother and create evidence in his favour.

After considering the overwhelming and negative influence of AF’s emotional manipulation and abuse of the children, Justice Harper feared that remaining with her would be highly damaging to their development. He ruled that custody would be given over to JW and that AF would have limited access during the children’s therapy sessions.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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