Audio and Video Recording in Family Part 2

In today's digital age, capturing life's moments is as easy as pulling out your smartphone. But when it comes to recording your children or spouse—especially with an eye toward legal matters or social media—it's essential to know where the law draws the line.

In part 1 of this series, we explored the legalities around recording conversations under Canada’s “one-party consent” rule. This rule allows you to legally record audio of interactions you’re part of, even without the other person’s knowledge. Now, let’s shift the focus to video recording, where what’s seen often carries more weight than what’s said.

What About Video?

Sometimes, it’s not the words that matter—it’s the actions. If you’re facing a situation where you believe video evidence could protect you or your child, such as documenting physical abuse, the instinct to press record is understandable.

Generally speaking, video recording without audio in most places is legal, as there's no reasonable expectation of privacy. However, in a private setting—like your home—the situation becomes more complex.  You may feel justified in doing what you need to do, and a court might even agree with your reasoning. But the law in these cases is far from clear-cut. It’s wise to tread carefully to avoid unintended privacy violations or legal consequences.

What If I Want to Post to Social Media?

Sharing recordings of your family drama on social media can be tempting, cathartic, and at times feel really good. Sometimes, you can gain literally thousands of people that you don’t even know agreeing with your point, and that can feel amazing. But pause before you post. Once it’s out there, you can’t undo the impact. Sharing recordings on social media can cause serious legal and personal blowback. You may face defamation claims, privacy violations, or damage your own credibility in court. Not to mention the strain it can place on relationships, especially when children are involved. What feels good in the moment might undermine your long-term case or lead to financial liability.

Okay, But I Can Record My Own Kid, Right?

Recording your own children depends on additional factors that are subject to context, reasoning, and how an external party, such as a judge, chooses to interpret your right to do so. Unlike, audio recordings, which are cut and dry, video itself (without sound taken into consideration) falls into a grey area. Determining whether it is permissible, or even legal, depends on the following: 

• Where the video recording takes place;
• Why the video recording takes place;
• The content of the video recording;
• How the video recording is made

For example, a parent might take a photo of their child in the bath, thinking, “This is such a beautiful moment—my child is growing up, and I want to remember this age forever.” But that same image, when viewed by an external party, could be interpreted very differently. They might argue, “This is inappropriate—the child was naked, and the photo was shown to friends and even strangers over the years, which could violate the child’s privacy and potentially breach civil or even criminal laws.”

On the other hand, a parent may have them same thought process when taking a photo of their fully-clothed child playing in the park. In that case, an external party would likely have no objection. The difference lies in context and perception, both of which heavily influence how the law—or a judge—may interpret the situation.

That said, even in a public setting like a park, it doesn't automatically give license for a parent or anyone else to photograph someone else's child playing in  a park. Whether a law is broken or privacy is violated will depend on additional factors that vary on a case to case basis.

Socially Speaking...

Another consideration is where is the recording happening? Many shopping malls, and other public areas may post signs from time to time that discourage or even threaten the public not to take photos or videos on site. The first point to consider, is whether or not the location is actually public or if it is afforded “special consideration”. Taking a video in the food court of a mall is viewed differently than walking through secure areas of bank or casino. Regardless, of whether or not the posted signs or advisement by officials will hold up in court, there is a social consideration. For example: it might be legal to stand on a sidewalk and video record the front of a police station from the outside – but is that a smart or good thing to do? Is there a good or bad purpose behind it? How will others view you for doing it? Again, the circumstances and details will vary from instance to instance and so will the ruling for each.

The Final Call

Ultimately, the courts have the discretion to decide what will or won’t be allowed into evidence and whether or not there will be liability and to whom for the recording or process used. In family law, many judges view recordings of spouses or children as potentially manipulative, staged, or intrusive. Always consult your legal counsel where possible and make sure that you don’t end up creating a new problem from trying to solve an old one. In some cases, hiring a qualified private investigator to gather evidence within legal boundaries—under the guidance of your legal team—can be a safer and more effective path forward.