The controversial practice of covert audio or video recordings in the context of Family Law in Alberta has recently generated considerable debate. Such clandestine recordings, often pursued by spouses as a strategic maneuver in legal disputes, raise intricate questions surrounding their admissibility in court.
The complexity of this issue is exemplified through cases like St. Croix v St Croix, 2017 ABQB 490, AJU v GSU, 2015 ABQB 6, and Mazur v Corr, 2004 ABQB 752, each offering unique insights into the legality of these recordings. While some argue that these recordings could provide pivotal evidence, concerns about their potential to extend litigation and inflate costs are valid.
This discourse aims to shed light on the legal standpoint and criticisms associated with the use of covert recordings in family law, offering a nuanced understanding of this contentious area.
Key Takeaways
- Surreptitious recordings are commonly encountered in family law cases, and spouses believe they can provide a litigation advantage.
- The admissibility of surreptitious recordings in court is influenced by factors such as the potential harm to children, encouragement of acrimony, prolonged litigation, and increased expenses.
- While the common law does not consider how evidence was obtained, the Alberta Court of King’s Bench has indicated that there are few restrictions on the admissibility of recorded conversations.
- There are criticisms of admitting surreptitious recordings, including the potential damage to children, rewarding the parent with better documentation skills, and the encouragement of more recordings and increased expenses.
Background on Surreptitious Recordings
In the realm of family law, surreptitious recordings, often made by spouses seeking a perceived litigation advantage, have become a common yet controversial element in many cases. These covert recordings, made without the knowledge or consent of all parties involved, are intended to capture damning evidence to be used in divorce proceedings or child custody disputes.
In Alberta, the admissibility of such recordings was discussed in detail in the case of St. Croix v St Croix, 2017 ABQB 490. The court held that the use of such recordings as evidence should not be a regular occurrence. This was in line with a previous decision in AJU v GSU, 2015 ABQB 6, which also discouraged the frequent admission of surreptitious recordings as evidence.
While not entirely prohibited or deemed illegal, surreptitious recordings are generally frowned upon within the legal system. Legal professionals emphasize that the potential harm to children and the encouragement of acrimony are significant reasons for the cautious approach. The onus lies on the party seeking to enter the evidence to establish a compelling reason for its admission, often a challenging task.
Admissibility of Covert Recordings
Navigating the complex legal landscape of covert recordings and their admissibility in Alberta family law proceedings requires careful consideration of several key factors. The courts primarily assess the relevance of the evidence, the manner of its acquisition, and the potential harm to the administration of justice if such evidence is admitted.
Significantly, the Court of Queen’s Bench of Alberta has provided some guidance in this matter in the case of St. Croix v St Croix, 2017 ABQB 490. The judgment emphasized that the onus is on the party attempting to admit such evidence to establish a compelling justification for its inclusion.
| Case | Rule | Effect |
|---|---|---|
| AJU v GSU, 2015 ABQB 6 | Covert recordings should not regularly be admitted. | Discourages parties from engaging in surreptitious recording. |
| St. Croix v St Croix, 2017 ABQB 490 | Onus on the party seeking to admit the evidence. | Sets a high threshold for admissibility. |
| Mazur v Corr, 2004 ABQB 752 | Few restrictions on recorded conversations. | Encourages the consideration of real evidence of events. |
This table encapsulates the varying judicial perspectives on the admissibility of covert recordings in Alberta family law proceedings.
Legal Perspective and Criticisms
Delving into the legal perspective on surreptitious recordings, it’s crucial to acknowledge the views of Justice Lee in Mazur v Corr, 2004 ABQB 752, who asserted that recorded conversations face few restrictions. Justice Lee held that the common law is not concerned with how evidence was obtained, hence surreptitious recordings are generally not prohibited. However, they should reflect real evidence of conversations or events, and the opposing party should be aware of the existence of the recordings before the hearing date.
Despite this, criticisms of such recordings persist. Some argue that admitting such evidence encourages acrimony, damaging children caught in the middle. It also seems counterintuitive to the goal of determining a child’s best interest. It privileges the parent with superior documentation skills, thereby prolonging litigation and increasing the volume of affidavits and exhibits.
Moreover, it creates a slippery slope, encouraging more covert recordings and further escalating costs. Therefore, while surreptitious recordings may be legally permissible, their admissibility into court proceedings is met with substantial criticism, primarily due to the potential harm to children and the exacerbation of hostilities.
Recorded Conversations in Court
The use of recorded conversations as evidence in court is a contentious issue, especially within Alberta’s family law realm. Often, parties involved in family disputes believe that such recordings can provide leverage in their cases. However, the admissibility of these recordings is not straightforward and is subject to the court’s discretion.
The Court of Queen’s Bench in Alberta, in its decisions for St. Croix v St. Croix and AJU v GSU, has provided some guidance on this matter. In these cases, the court maintained that the admissibility of secretly recorded conversations should not be a regular practice. The burden falls on the party seeking to use such evidence to provide a compelling reason for its inclusion.
| Case | Ruling |
|---|---|
| St. Croix v St. Croix, 2017 ABQB 490 | Admissibility of surreptitious recordings should not be a regular practice |
| AJU v GSU, 2015 ABQB 6 | Onus on the party seeking to enter the evidence to establish a compelling reason |
Furthermore, the court emphasized that the potential harm to children and the encouragement of acrimonious behaviour are grounds for excluding such evidence. Despite these guidelines, the issue remains complex and often requires expert legal counsel to navigate.
Seeking Legal Advice on Recordings
Given the complexity surrounding the admissibility of surreptitious recordings in court, it becomes imperative to seek expert legal advice to understand the implications and constraints of using such evidence in family law cases. Experienced family lawyers can provide insight into the potential admissibility of a recording in your possession.
Family law is a specialized field requiring nuanced understanding and application of the law. Legal experts can assist in navigating the often complex and challenging terrain of family law litigation, particularly when it involves the use of surreptitious recordings. They can provide guidance on the relevance of the recording, the circumstances of its acquisition, and the likelihood of its admissibility in court.
Moreover, Spectrum can help determine the best path forward. This might involve weighing the potential benefits of using such evidence against the risks, such as prolonging litigation, increasing expenses, and potentially harming children. Thus, consulting with a family lawyer is essential to make informed decisions about using secret audio or video recordings in family law cases.
References
AJU v GSU, 2015 ABQB 6 (ABKB) https://www.canlii.org/en/ab/abqb/doc/2015/2015abqb6/2015abqb6.html
Mazur v. Corr, 2004 ABQB 752 (ABKB) https://www.canlii.org/en/ab/abqb/doc/2004/2004abqb752/2004abqb752.html
St. Croix v St. Croix, 2017 ABQB 490 (ABKB)
https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb490/2017abqb490.html
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