The courts have taken a very dim view of secretly recording telephone calls, video taping and private investigator’s reports being admissible in family law actions. In a series of decisions, including one of this author’s favourite judges, Justice Sherr of the Ontario Court of Justice (the man deserves to be on the Court of Appeal but that’s another matter) in Hameed v. Hameed and recently commented upon by Justice Howard in his recent decision of Veljannovski, the courts have held that admitting secret recordings should be strongly discouraged in that they only raise the temperature in high conflict family law cases rather than allowing the parties to build trust where none exists. The courts have generally found these recordings to be odious and repugnant and admissible only in the narrowest of circumstances. The parties seeking its admission must establish a compelling reason for doing so.
Conversely our office has been involved in a number of cases in which the evidence of a private investigator has proved to be crucial. In a Ontario Court of Justice case before Justice Dunn the report of a private investigator who was able to confirm the use of crack cocaine by members of the mother’s family, while the child was in her care was crucial in convincing the judge to severely restrict access by the then custodial mother to access to her own child. It really is a case by case strategy and decision and it needs the hand of an experienced family law lawyer to decide whether or not the fees and risks involved make sense.
We would be remiss in also not noting the excellent article by Brian Burke and Margaretta Hanna titled “Surreptitious Recordings In Family Law” which was one of the sources of this brief article.