COURT FILE NO.: FS-21-100000-000

DATE: 2021 10 06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Damian Pantin v. Christine Pantin

BEFORE: FOWLER BYRNE J.

COUNSEL: Rachel Healey, for the Applicant Simone Moses, for the Respondent

HEARD: September 23, 2021

E N D O R S E M E N T

[1] Both parties brought motions before the court that involved issues of parenting, attendance at school, and the sale of the matrimonial home. To the parties’ credit, they were able to resolve all outstanding issues save and except parenting.

[2] Accordingly, the sole issue to be determined by me is parenting time. In relation to this issue, counsel for the Applicant Father asks that I find that an audio recording of the Applicant, taken without his knowledge, should not be admitted as evidence in this motion.

Background

[3] The parties were married on September 20, 2014, after cohabitating since approximately 2012. They separated on January 27, 2021. There are two children of the marriage: J.P., who is now 9 years old and N.P., who is now 5 years old. The Respondent Mother also has a daughter from a previous relationship, A.M., who is now 20 years old. She lived with the parties as part of their family until she moved out shortly before the separation.

[4] It is not contested that the Respondent left the matrimonial home with the children of the marriage on January 27, 2021 and did not return. She initially brought the children to stay with her and her parents in Thorold, Ontario. She remained there with the children until recently when an agreement was made that the Respondent and the children return to the matrimonial home pending its sale. The Applicant has secured alternative accommodations close to where the children are now living. The children are enrolled in the local school.

[5] The Applicant maintains that he has always been a very involved parent.

He has worked at home for approximately 3 years prior to the pandemic. This has afforded him the opportunity to be involved in the children’s health, education, and extracurricular activities, as well as their day to day lives. He has a large supportive family that will assist him at any time if necessary.

[6] The Applicant states that he has a reasonable plan that will allow for equal parenting time on a 2/2/3 schedule. In addition, he states that since the separation, he has attended counselling and has taken a course on cooperative family divorce.

[7] The Respondent’s account of both the relationship and its end is very different. The Respondent maintains that the relationship has been fraught with emotional and verbal abuse. She maintains it started soon after she started cohabiting with the Applicant. She indicates the Applicant is controlling and aggressive and that the children have witnessed it. The Respondent states that she became fearful of being in the presence of the Applicant and was seeking support from a counsellor to end the relationship. She also alleges the Applicant is very angry and aggressive with her parents and extended family in the presence of the children.

[8] The Respondent currently facilitates parenting time with the Applicant on alternate weekends, supplemented with additional video visits. She wishes that to continue. The Office of the Children’s Lawyer has been requested to become involved.

Use of the Recording

[9] The subject of this issue is an audio recording, approximately twelve and one-half minutes long, which recorded what the Applicant said during the late night of January 25, 2021 or early morning of January 26, 2021.

[10] The Respondent states that she told the Applicant she wanted to separate on January 23, 2021. Several days later, she decided to sleep in another room, which prompted the Applicant to become angry. He brought J.P. into his bed and then left to find the Respondent and start to verbally berate her, which lasted most of the night. Part of what the Applicant said is set out in the Respondent’s affidavit and part is set out in the affidavit of Angela Ceccato, who is a friend of the Respondent and who the Respondent asked to stay on the phone during part of the night. Later in the evening Ms. Ceccato actually attended the matrimonial home and overheard the Applicant herself. In addition, part of what the Applicant said was recorded by the Respondent on her phone. This phone recording is at issue.

[11] It appears that the Applicant was aware that the Respondent was recording him. At one point in the recording he states, “you fucking recording… you’re fucking recording me…” and then “…you stabbed me and waited until it fucking hurt and then record me and then you will take that to your lawyer…”. This is captured in the first minute of the recording. The Applicant does not refute what was said on this recording. By any measure, what is heard on this recording is disturbing.

[12] The issue of when a surreptitious recording should be admitted in family law proceedings was recently canvased by Kurz J. in Van Ruyven v. Van Ruyven, 2021 ONSC 5963.

[13] In general, surreptitious recordings in family law matters are strongly discouraged and are often not admitted into evidence. That being said, the court retains some discretion to determine whether the recording’s probative value outweighs the strong policy factors that lean towards its exclusion: Sordi v. Sordi, 2011 ONCA 665, 13 R.F.L. (7th) 197, at para. 12; Van Ruyven at paras. [33-34](https://www.canlii.org/en/on/onsc/doc/2021/2021onsc5