Jul 16, 2020

When are Illegal Recordings Admissible in Family Court?

M.Y.T.C. v L.H.N, 2019 BCSC 2454 (CanLII)

The claimant mother sought to introduce four cell phone audio recordings of the parties and their son, between 2011 and 2017. The respondent and the child were not aware they were being recorded. Counsel for the respondent husband challenged their admission on the grounds that their prejudicial value outweighed their probative value. Justice Milman held a voir dire on admissibility so the circumstances surrounding the recordings could be ascertained.

Relying on Finch v. Finch 2014 BCSC 653 the court recited the test for admissibility:

1. Are the recordings relevant?
2. Are the participants accurately identified?
3. Is the recording trustworthy?
4. Does the probative value outweigh any prejudice?

MYTC argued that the recordings show how LHN was encouraging their teenage son to reject a relationship with his mother and contribute to parental alienation. As well, on the tape LHN acknowledged that certain family property reflected a gift from MYTC’s mother, a fact he was presumably denying at trial.

LHN maintained that the recordings painted her client in a bad light and because LHN did not consent to the recording the administration of justice would be
brought into disrepute.

Justice Milman “reluctantly” admitted the recordings, although he was disturbed by the illegal nature of them. He pointed out that the weight they would be given would unfold as the trial progressed. He also noted that recording another party without their consent should not be encouraged by the courts. The transcripts of the recordings, prepared by MYTC, would not be admitted, however. He also remarked that the recordings were a “highly selective” snapshot based on MYTC’s decision to turn on a microphone.