When gathering evidence or preparing for court in family law files, we are often asked by parents whether it is legal to record a conversation (with their child, their ex-spouse, etc.). The short answer is that this is not advisable and can be extremely problematic.
In hard-fought custody cases, litigants often have an uncontrollable urge to tape record conversations between themselves and their former partners, or conversations of their children, all in the hope that the evidence gathered will assist in their goal for custody or expanded parenting time. The problem that arises is that sometimes tape recordings are relevant and probative and often the only way to effectively buttress a party’s claims, but equally as often, judges will rule surreptitious recordings inadmissible and criticize the parent who records. The dilemma is when to know the difference (https://canliiconnects.org/en/commentaries/64746).
Though we do not recommend recording conversations, Quebec courts recognize that a person may record his or her conversation with someone as long as they are a party to the conversation. However, if you must record, as a courtesy, you should advise the person you will be recording or ask them for their consent to record. This can be an issue because if your child knows you are recording them, the interaction between you will be rehearsed and will not be a natural recount of events. In short, it will not be a pure declaration. If for example, parents have asked a child many questions, it may be perceived that the parent influenced the child, their thoughts, or memories of the occurrence/s. Moreover, if your child has been through a traumatic incident, and this may lead to a criminal investigation or an interview by police officers, it is important that your child’s first interview take place with the police.
In general, parents have a tendency in a heated litigation to record their children, for example, if they voice their wish to live with one parent or voice that they had a bad visit with one parent. We strongly advise against recording practices in general. It can be very stressful for the child if they are aware or become aware that they are being recorded. Recordings can be perceived in a negative light by the Court or Youth Protection especially if it is a consistent pattern.
There are always exceptions of course. For example: If your child is completely unaware you are recording and is telling you something that is very troublesome/illegal, and they are in danger and you can be discrete by showing the recording to a person of authority, then it may be useful.
Preserving the integrity of the recording
The admissibility of a recording also depends on demonstrating its integrity and reliability. Thus, the party wishing to rely on a recording must be able to establish the circumstances in which the recording was made, and that its integrity has not been compromised. In this regard, it is important to preserve the meta-data of the electronic file and to keep a copy of the recording in its original form.
If you have any questions/concerns, do not hesitate to contact us!