Disclaimer: This article aims to provide educational information on recording conversations in Ontario. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog. 

Divorce and family law matters can be an emotional rollercoaster, leaving individuals desperate to safeguard their rights and interests. You might consider recording a conversation with your spouse to strengthen your position.

However, is it legal in Ontario for you to record your spouse? Do you have to get their consent? What happens when these recordings are brought to the courtroom as evidence? This article outlines the law and explores how the courts view these secret recordings. 

Can you record a conversation in Ontario?

In Ontario, as in many jurisdictions, the issue of whether recording a conversation is lawful hinges on the consent of the parties involved. 

Ontario follows the “one-party consent” rule. This means that as long as one party participating in the conversation consents to the recording, it is generally considered legal. One spouse can record a conversation with their ex-spouse without the latter’s knowledge or consent, provided the recording spouse is part of the conversation.

To be clear, though, one party must consent. You cannot record conversations between your ex-spouse and a third, unsuspecting party. Wiretapping or eavesdropping is a criminal offense under the Criminal Code and is punishable by up to five years in prison. 

Can I rely on those recordings in court? 

It’s one thing to be able to record a conversation. The question becomes, “Can I use this recording in court?” 

The answer: it depends. 

The courts generally do not like the practice. However, they will consider several factors when deciding whether these recordings can be admitted as evidence.

Relevance: For recorded conversations to be considered as evidence, they must be directly relevant to the family law dispute at hand. If the content of the recording does not pertain to custody arrangements, financial support, or other pertinent issues, it may be deemed inadmissible.  Where one party is surreptitiously recording the other party, the evidence is likely not as reliable and can be prejudicial.

Authenticity: The party seeking to introduce the recorded conversation as evidence must prove its authenticity beyond a reasonable doubt. This involves demonstrating that the recording has not been tampered with or altered in any way. 

That means that you are submitting the entire conversation. Courts want to be sure that it is a complete recording and that you’re not just presenting a portion of it out of context. 

Best Interests of the Child: In family law matters, courts always prioritize the child’s best interests. If the recorded conversation impacts the child’s welfare positively or negatively, it may be considered by the court.

Should I secretly record my ex-spouse? 

Even though recording conversations in Ontario may be legally permissible under the “one-party consent” rule, should you do it? 

It may be better to step back and think about the bigger picture. Doing so can further damage strained relationships and breach the trust necessary for effective co-parenting.

The courts generally have a distaste towards surreptitious recordings as the recordings are likely not as reliable and are prejudicial.  If the court determines that the content of the recordings is of sufficient probative value, which outweighs the policy considerations against such recordings, then the court may admit them into evidence.  

Instead of recording your spouse, prioritize open communication, mediation, and seeking legal advice before taking any action that may have lasting consequences on your family’s dynamics.

Navigating family law matters with Plat Simionati LLP 

In conclusion, recording conversations with an ex-spouse in Ontario is legally permissible under the “one-party consent” rule. However, it is not guaranteed that it will be allowed as evidence in a family law matter, and courts will carefully examine the recording’s relevance and authenticity. 

Ultimately, parties involved in family law disputes should seek legal counsel and focus on constructive communication and mediation. This will ensure the best possible outcome for all parties involved, especially the children. To learn more about how to navigate complex family law situations, reach out to the experts at Plat Simionati LLP today.