It is not uncommon in family law cases, particularly given the current state of and advances in cell phone technology, for litigants in a family law case to resort to various means of surreptitious surveillance of one another. This is particularly so where custody/parenting is in issue. Ranging from recording of telephone or in-person conversations, to installing GPS trackers (or cell phone tracking applications) to full blown private investigation, parties to litigation tend to operate on the assumption that evidence acquired by such means will be of significant value in their case.
In the recent case of Veljanovski v. Veljanovski, 2016 CarswellOnt 5884Ontario Superior Court Justice Howard determined that the Mother had not established a sufficiently compelling reason to allow surveillance evidence she had submitted to the Court. Justice. In noting that the evidence was not necessary to reveal information to the Court that was not otherwise available, Justice Howard noted that the courts have generally considered surveillance practices as “odious and repugnant” and admissible in only the narrowest of circumstances.
In quoting from the reasons for decision of Justice Sherr in the 2006 case Hameed v. Hameed, Justice Howard reiterated:
“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. In a constructive family law case, the professionals and the court work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process”.
Rather than helpful or persuasive, the courts generally find this evidence to be distasteful and objectionable and policy considerations must be weighed against any probative value the evidence might have. The party seeking the admissions of such evidence must be able to establish a compelling reason for admission.