By Mahira Adeeb
At a time when privacy concerns are increasingly acquiring greater significance for individuals, it may be pertinent to examine how these concerns affect family law cases.
There is conflicting case law on whether or not a family court will allow in evidence that is improperly or illegally obtained. The law is clear that the taping by one parent of the other parent’s private conversations, without that parent’s consent, is illegal. Despite this, a review of the case law reveals that the family courts have been inconsistent with respect to their rulings on the admissibility of such evidence.
In the case of Fattali v. Fattali, 1996 CanLII 7272 (ON SC), the court excluded such evidence and emphasized that, “…such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interest of children should not be decided on evidence the product of calculated subterfuge.”
In contrast, in Reddick v. Reddick, O.J. No. 2497 (Ont. Gen. Div.), the court allowed such evidence finding that it was “in the best interests of the children” that the evidence be allowed. The court reasoned as follows:
…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 as that 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.
Although the judge allowed the evidence, he noted the “court’s natural repugnance of illegal conduct” and “the general need to discourage the taping of private communications between parent and child.”
In the case of M (KL) v. B (J), 2013 BCSC 2041, regarding the admissibility of such evidence in family law cases, the court noted that “it is clear there is a limited discretion to exclude relevant evidence in this context,” and further that “the judicial exercise of that discretion involves a balancing of competing interests which can be usefully viewed as assessing the probative value of the evidence as against its prejudicial effect.”
The court referred to the case of Mathews v. Mathews, 2007 BCSC 1825, wherein the court allowed evidence improperly obtained due to its relevance and probative value, specifically the court reasoned:
the existence of prejudice created by the “odious” practice of secretly intercepting private communications was offset by the prejudice that would arise by excluding the evidence. The administration of justice favours the admission of probative reliable evidence which is relevant to the best interests of the children.
In cases where such evidence was deemed inadmissible, the courts emphasized that the improperly obtained evidence gathered was not highly relevant to any of the issues to be decided by the court. For instance, in the case of Godin v. Godin, 2010 NSCC 365, where the mother had sought to present as evidence the father’s improperly obtained emails, the court disallowed the evidence at the trial because the relevance of the evidence to the matter was low. Pertinently, the court reasoned that “allowing material obtained in such a manner into evidence could make it open season for the parties at the end of the relationship to hack into each other’s email account to find material for trial.”
In the case of Luckov v. Taylor 2008 ONCJ 795, the court held that the improperly obtained evidence (recordings of private phone conversations) was inadmissible, and observed that, “the court should strongly discourage such divisive steps in the family law cases where the parties are rather to be encouraged to move towards a stage where they are able to cooperatively raise their children.”
Ultimately, even though the courts discourage the use of improperly or illegally obtained evidence at trial, where such evidence is highly relevant to an issue before the court, or where it is in the “best interests of the children”, the court may allow the evidence. The test generally used by the courts is whether the probative value of the evidence outweighs its prejudicial effect.
As noted by Professor D.A. Rollie Thompson, “the best interests of the child override any ‘rules’ of evidence, so that any evidence that might affect ‘best interests’ must be admitted, whatever the rules.”