Court File and Parties

Court File No.: D62098/13 Date: January 10, 2017 Ontario Court of Justice

Re: A.F., Applicant v. B.J.A., Respondent

Before: Justice Melanie Sager

Counsel: Pamila Bhardwaj, Counsel for the Applicant Tanya N. Howell, Counsel for the Respondent

Heard On: December 8, 2016

I. The Issue

[1] This is a ruling on a mid-trial objection made by A.F. (the mother) on the admissibility of certain voice recordings and certified transcriptions of the same voice recordings sought to be introduced into evidence by B.J.A. (the father). The mother opposes the admissibility of the recordings and transcripts.

[2] The trial commenced on December 5, 2016 and continued for five days after that. On December 8, 2016, the mother noted her objection to the voice recordings and transcripts and the court heard argument on the issue. A decision was rendered admitting both the recordings and transcripts into evidence for oral reasons given, with further written reasons to follow.

[3] These are the additional reasons for the court's decision.

II. Background

[4] The parties both seek sole custody and primary residence of their son, B.A., born […], 2013 (the child). The parties propose an identical access schedule for the other parent should they be granted custody of B.A., more specifically that the other parent have access to B.A. every weekend from Friday to Sunday.

[5] The father submits, in part, that he should have sole custody and primary care of B.A. as the mother is emotionally unstable and the child is at risk of emotional harm. He wishes to rely on recordings of ten telephone conversations he had with the mother to support his claim that the mother is emotionally unstable. He has obtained transcripts of the conversations by a certified court reporter and wishes to submit the transcripts into evidence in addition to the voice recordings.

[6] The father argues that the voice recordings are relevant as they provide examples of the behavior the father claims the mother displays which he says supports his position that the mother is emotionally unstable.

[7] One of the recordings was made on August 4, 2014; three were made on April 26, 2016; five were made on August 16, 2016; and, one was made on October 2, 2016.

[8] To assist the court in determining the issues, the court listened to the recordings and read the transcripts.

III. Mother's Position

[9] The mother does not dispute that her voice is heard on the recordings or that she said what is recorded in the transcripts although counsel argued that the recordings are "fuzzy and questionable" but did not give specific examples or evidence in support of this submission.

[10] The mother submits that the recordings were taken surreptitiously and for that reason should not be admissible. She says that public policy dictates that courts should refrain from allowing such evidence to be admitted in order to send a strong message to family law litigants that such odious behaviour will not be tolerated by the court.

[11] The mother further submits that there is very little probative value in the recordings which the father is submitting to substantiate his claims that the mother repeatedly threatens self-harm in their conversations. She says that there is an abundance of other evidence available to the father to establish that the mother has made threats of self-harm during conversations with him and that where there is other evidence available to the court this type of evidence must be discouraged.

[12] The mother's position is that in order to foster sound public policy to discourage such behaviour, recordings made without the other party's knowledge should not be admissible.

[13] The mother submits that the onus is on the father to provide a compelling reason why the proposed evidence should be admitted and that the overriding consideration is the best interests of the child.

[14] Finally, mother argues that allowing this type of evidence should be the exception not the rule.

IV. Father's Position

[15] The father submits that the recordings should not be considered by the court to have been made surreptitiously as the father advised the mother in 2014 that he would be recording their conversations. [1] The mother therefore knew or ought to have known she was being recorded.

[16] The father submits that the recordings and transcripts should be admissible as they are relevant to the issues in the trial and that the court should adopt a very broad definition of what is relevant when dealing with issues of custody and access.

[17] The father argues that the recordings are extremely relevant as they provide the court with evidence of potential harm to B.A. and since this trial is about B.A. the court ought to admit the recordings and transcript into evidence.

V. The Recordings

[18] The court listened to the recordings provided by the father and does not agree with the mother's submission that they are "fuzzy and questionable". While the father's voice is sharper, the mother's voice can be heard very clearly. The court had no difficulty understanding what the parties were saying and the transcripts matched what the court could hear.

[19] In the recordings the mother can be heard threatening to kill herself, disparaging the father, disparaging B.A., using racial slurs and profanity in excess. In some conversations she is notably angry and in others she is calm and subdued.

[20] In two of the recordings a child can be heard and in one of those the mother acknowledges in the conversation that the voice is that of B.A.

VI. The Law

[21] In the case of Scarlett v. Farrell, 2014 ONCJ 517, at paragraphs 24-30, Justice Robert Spence provides a thorough overview of the law on this issue. The paragraphs read as follows:

[24] In Seddon v. Seddon, [1994] B.C.J. No. 1062, Thackray, J. was faced with the issue of whether to admit into evidence audio and video tapes that may have been recorded surreptitiously. The party seeking to admit those tapes argued that even if the tapes were illegally or surreptitiously obtained, it was in the interests of justice to admit them into evidence. However, at paragraph 25, the court concluded:

I am of the opinion that is not desirable to encourage the surreptitious recording of household conversations, particularly so when it is done in the family home and the conversations are between family members. This is an odious practice.

[25] In Hameed v. Hameed, 2006 ONCJ 274, Justice Stanley B. Sherr was faced with a similar issue. At paragraph 11, Justice Sherr stated [my emphasis]:

Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties' worrying about whether the other is secretly taping them.

[26] And at paragraph 13, Justice Sherr concluded [my emphasis]:

The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value. The party seeking its admission should establish a compelling reason for doing so.

[27] Justice Sherr decided in that case that the father had failed to establish that compelling reason and thus excluded the tapes from evidence.

[28] However, a different outcome was reached in Reddick v. Reddick, [1997] O.J. No. 2497, a decision of Bell J. At paragraph 24, Justice Bell concluded [my emphasis]:

After reviewing all of the evidence on the voir dire, I conclude that the evidence of tape-recorded conversations between the mother and the children which is sought to be introduced is relevant, reliable and probative. In the particular circumstances of this case, the fact that the evidence goes to such important issues of parental alienation and inappropriate pressure on the children leads to the conclusion that it should be admitted in the best interests of the children. That would outweigh any perceived unfairness relating to the lack of early disclosure and the unavailability of some of the earlier tapes, the court's repugnance of illegal conduct and the general need to discourage the taping of private communications between parent and child. Accordingly, the evidence sought to be adduced shall be admitted.

[29] While Bell J. did admit the recordings into evidence, the approach to this issue was not necessarily different to that taken in Hameed, given the "important issues [for example, of parental alienation and inappropriate pressure on the children] [which] leads to the conclusion that it should be admitted in the best interests of the children".

[30] Toope v. Toope, is a decision of Cook J. At issue in that case was whether surreptitiously recorded conversations taped by the child's mother should be admitted into evidence in a custody case. At paragraphs 28 and 29, Cook J. stated [my emphasis]:

I find that the tapes and transcripts are relevant to the issues before the Court, especially in considering whether Mr. Toope planted the seeds of parent [sic] alienation. The presiding judge who will deal with the merits of the application will determine the reliability and probative value of the tapes and transcripts when he or she considers all of the evidence.

Adam's best interests must be the paramount consideration. This outweighs any procedural unfairness relating to the lack of early disclosure of the tapes and transcripts. It also outweighs this Court's repugnance of illegally taping telephone conversations without knowledge or consent. In short, with a degree of reluctance, but also by not condoning such calculated subterfuge, the evidence sought to be adduced can be considered at the hearing of the application on its merits.

[22] The Court of Appeal of Ontario decision in Sordi v. Sordi, 2011 ONCA 665, made it clear that a trial judge has broad discretion when deciding whether to admit into evidence taped recordings of conversations provided that there is a proper consideration of the "sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings" and an "assessment of the probative value of the tapes in relation to the issues before him".

[23] The father's submission that the recordings were made with the mother's knowledge is persuasive as he did advise her in 2014 that he would be recording their telephone conversation and she acknowledged in one of the recorded conversations that she knows she is being recorded. The court finds that the recordings were not surreptitious and therefore are admissible.

[24] If the court is wrong and the recordings were made surreptitiously, the court would still admit the recordings and transcripts on the basis that the probative value of the recordings and transcripts outweighs the policy considerations against admitting such recordings into evidence for the following reasons:

(a) The conversations provide the court with the opportunity to hear the tone of the conversations which written materials do not offer. This is of particular importance and relevant when the conversations take place in front of the child and there are allegations that the mother's behaviour creates a risk of emotional harm to the child;

(b) At least two of the conversations on the face of the transcripts took place in front of B.A. and others took place when B.A. was in the mother's care, which goes to the very heart of the issues raised by the father;

(c) While the mother's counsel raised the argument that the recordings are easily manipulated and are fuzzy and questionable, she provided no evidence that supported her submission that the recordings were not authentic;

(d) As the recordings and transcriptions provide evidence that is directly related to one of the main issues in this trial, namely whether the mother is emotionally unstable and if she is, does that put the child at risk of harm, the probative value of the proposed evidence outweighs the prejudicial effect of admitting it and the desire of the court to make decisions that do not encourage parties to secretly record one another to gain the upper hand in family law proceedings;

(e) In her evidence the mother acknowledges that she has behaved inappropriately in her communications with the father and that she has had counselling to help her address the problem. As the father produces recordings from as late as October 2016, this in part counters the mother's argument that she has taken steps to address her inappropriate behavior;

(f) The recordings assist the court in understanding the claims being made by the father and as this case is about a 3 year old boy who is unable to provide his views and preferences to the court, the recordings have some value to the court; and,

(g) As the recordings are between the parents as opposed to a parent and a child, it cannot be argued that the mother in this case was manipulated into saying what can be heard in the recordings.

[25] The issues raised by the father are of sufficient importance to permit the recordings to be entered as evidence. The best interests of B.A. dictate, in this case, that the recordings and transcripts should form part of the evidentiary record in this trial.

[26] The court finds that the recordings and transcripts are relevant to the issues to be determined on this trial and that the father has met his onus of providing a compelling reason for the admission of this evidence.

Dated: January 10, 2017

Justice Melanie Sager

Footnote

[1] Mother acknowledges this fact but states that she was not told by the father that these specific conversations were being recorded.