Audio and Video Recording in Family Law Part 1

How many times have you thought to yourself, “I wish (blank) could see this”? If you’re going through a difficult separation, divorce, or other family law matter—like determining child custody or trying to prove domestic abuse or violence—the answer is likely: many times. And the blank is usually filled with “my lawyer” or “the judge.” Understandably so. A picture says a thousand words, and a video tells a story like no other. These days, capturing those moments is easier than ever. Most phones can take incredible photos, shoot high-quality video, and record clear audio of the other party.

Before you reach for your smartphone or any other recording device, it’s important to consider the legal rules, how they apply to your situation, and the potential liability that could follow. Whether you're recording adults or children, the laws around audio and video recordings are complex. They are governed by a mix of federal and provincial legislation, including the Canadian Criminal Code and privacy laws. The legality of any recording depends on several factors: how it’s done (audio vs. video), where it takes place (public vs. private), why it’s being recorded, and who is doing the recording (a private investigator or a civilian).

To help you better understand where the legal lines are drawn, let’s break down the key considerations—starting with audio recordings.

Audio Recording: Legal Considerations

Under Section 184 of the Canadian Criminal Code, intercepting private communications without consent is generally prohibited. However, an exception exists for situations where one of the parties involved consents to the recording. This "one-party consent" rule permits individuals to record conversations they are a part of without notifying the other participants. For example, if someone is engaged in a conversation with a child, they may legally record that conversation without the child's or guardians' explicit consent. This is provided the recording is not for a criminal purpose.

On the other hand, recording a conversation without being a participant—such as placing a hidden recorder to capture conversations between others—is illegal. This applies regardless of the setting, emphasizing the importance of consent in private communications.

Video Recording: Legal Considerations

The rules for recording videos differs considerably from audio recording. The Criminal Code's provisions on intercepting private communications do not extend to silent video recordings. Therefore, capturing video footage without accompanying audio does not violate Section 184. But it matters where you record and the circumstances of the recording.

In public settings, individuals generally do not have a reasonable expectation of privacy. This means recording video in public places is typically legal, provided the footage is not used for illicit purposes and does not involve criminal harassment or voyeurism. (Don’t be fooled by those signs threatening otherwise. Public is public, in most cases.) However, ethical considerations should guide the recording of children, ensuring that their rights and well-being are respected and protected.

In private settings, the expectation of privacy is increased. Video recording individuals, including children, without consent in private spaces such as homes or private properties can lead to legal repercussions, particularly if the recording is deemed intrusive or violates privacy rights. Additionally, specific provisions under Section 162 of the Criminal Code criminalize secret recording for sexual purposes or in situations where individuals have a reasonable expectation of privacy, such as bathrooms or bedrooms.

Role of Licensed Private Investigators

Licensed private investigators (PIs) in Ontario operate under the Private Security and Investigative Services Act, 2005, which imposes certain restrictions. While PIs have a broader authority to conduct surveillance, they are still bound by federal and provincial laws, including those related to privacy and recording. Regardless of what a PI tells you, just because you hire one DOES NOT mean that they can bypass the law without facing penalties AND exposing you to serious liability for their actions.

Concerning audio recording, PIs must adhere to the same rules as you. They can record conversations they are party to (or within public earshot of) but cannot legally intercept private communications between others without consent. Regarding video recording, PIs can conduct surveillance in public places where there is no reasonable expectation of privacy.

However, recording in private settings without consent can constitute a violation of privacy laws, and any evidence obtained unlawfully may be inadmissible in court. For this reason, it is critical that recordings made in private involve the knowledge and instruction of qualified legal counsel. There’s nothing worse than paying for a service that ultimately doesn’t help you or worse hurts you

Privacy Laws and the Reasonable Expectation of Privacy 

Both federal and provincial privacy laws play a crucial role in determining the legality of recordings. The concept of a "reasonable expectation of privacy" is central to these laws. In public spaces, this expectation is diminished, allowing for more leeway in recording. However, in private settings, individuals, including children, have a heightened expectation of privacy, and recording without consent can infringe upon their rights.

Penalties for Getting it Wrong

Civilians are subject to stricter limitations concerning recording than PIs. While you can record conversations that you are part of under the "one-party consent" rule, recording others (earshot) without consent is illegal. Video recording in public spaces is generally permissible, but in private settings, recording without consent can lead to legal consequences, including potential charges of voyeurism or invasion of privacy. Context and circumstances matter.

Recording can feel like a powerful way to protect yourself or build your case—but as you’ve seen, it’s not as simple as pressing “record.” The legal landscape is layered, and one wrong move could jeopardize your position or even expose you to liability. Come back for part 2 to learn more about what you should know before hitting record.