Reasonable Doubt: Can I audio or video record my ex?

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      By Jennifer Lin

      You’re dropping your child off at your ex’s house, in keeping with the parenting schedule you (reluctantly) agreed to during a stressful negotiation/mediation session with your ex and a bunch of lawyers. Your ex comes to the door. Awkward hellos are exchanged, and your child disappears inside the house. You turn to leave. 

      Suddenly, without warning, your ex raises their voice and starts saying nasty things. They accuse you of being a bad parent. They insult your new common-law partner. Maybe they’re threatening to go back to court, or they’re bragging about how much money they actually earn and how you’ll never be able to prove it in court so you might as well forget about child support.

      Can you record your ex while they’re saying these things?

      As with most issues in family law (which is what we call the area of law that governs divorce and separation), my answer has two components: there’s the strictly legal answer and there’s the practical, “real life” answer. As I will explain further, while the law itself, as it’s written on paper, may be black and white, the application of that law in real life is far from black and white.

      The legal answer

      In Canada, it is illegal to record a private conversation. However, if one of the people participating in that conversation consents to the recording, then it is not illegal.

      So what does that mean? It means you’re not allowed to record people having a conversation unless you are one of the people included in that conversation (or if someone else in that conversation consents to you recording them, which is unlikely to happen in the current context). If you’re part of the conversation and you consent to the recording (which, obviously, you do, since you’re the one making the recording), then you’re not breaking any laws.

      So, in my made-up scenario above, you would be perfectly within your rights to pull out your phone and start recording or filming your ex as they explain exactly why you’ll never see a penny of child support from them and how your nosy sister was the one who wrecked your marriage in the first place.

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      The practical, real-world answer

      The law says you can record your ex as long as you are part of the conversation with your ex that is being recorded. But should you?

      Here are some things to consider:

      • While recording your ex may seem like a good idea, it can get out of hand if your ex sees you recording them. Sometimes the ex will whip out their own phone and now you’ve got two people in a recording duel, which rarely produces a productive result. Additionally, if your ex is aware that they’re being recorded, they’ll most likely adjust their behaviour and words because of it, which defeats the purpose of you wanting to record them in the first place.
      • More often than not, the statements your ex is making aren’t actually as helpful to your case as you think they are. If you aren’t sure, talk to a family-law lawyer. But chances are that your ex isn’t saying anything that will magically win your case for you.
      • Judges usually frown upon people recording the opposing party in family-law cases and are reluctant to listen to the recording. So your recording may not end up even being used in your family-law case.

      Breakups can be messy and hurtful, and some people view the court system as a mechanism that will correct every single wrong that we feel has been done to us by our ex. But the reality is, the court system does not have the time nor the legal ability to address every perceived injustice stemming from a relationship breakdown.

      So the next time you feel the urge to take out your phone to record your ex, stop and think about whether that recording is actually going to do you any good in the long run.

      You might find that the best course of action is simply to walk away and feel grateful that you’re no longer in a relationship with that person.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Jennifer Lin practises family law at Catalyst Legal.

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