In a society rife with smartphones and other recording devices, parties in family disputes often resort to secretly recording their ex in an attempt to gain evidence of alleged wrong-doing and to strengthen their own case. The Court of Queen’s Bench of Alberta in a recent case – St. Croix v St. Croix, 2017 ABQB 490, decided on August 4, 2017, affirms the current law with respect to surreptitious, or secret, recordings in family law matters.
St. Croix v St. Croix shows the welcomed shift in the law and attitude of the Courts in Alberta with respect to surreptitious recordings from the position set in the 2004 case of Mazur v Corr, 2004 ABQB 752. The Court of Queen’s Bench of Alberta had said that surreptitious recordings were generally not prohibited or restricted from being admissible as evidence.
The Honourable Justice K.P. Keehan in St Croix confirms the general distaste of the Courts toward such recordings, and states that the recordings can only be admitted after a voir dire. A voir dire is a separate hearing from a trial, but often held within the course of a trial,- it is often referred to as a trial within a trial- and would be held in this type of case to determine the admissibility of evidence, such as surreptitious recordings.
The Honourable Justice Keehan quotes Justice Pentelechuk in the 2015 case of AJU v GSU, 2015 ABQB 6 where she sets out the policy consideration against the admissibility of such evidence:
“If we accept that acrimony between parents and the adversarial process is damaging to children, admitting such evidence under the guise it is relevant to determining a child’s best interest seems counterintuitive…not only does it risk rewarding the parent who possesses a greater acumen for documenting and recording, but the prolongs the litigation and increases expense…”
This case is a good reminder that even if the content of the recording appears relevant to a party, the fact that the recording was obtained surreptitiously is likely to exclude its admissibility not least because this type of behavior only prolongs the acrimony. The overarching policy reasons regarding privacy are important enough to warrant such strict barriers on admissibility.