To put it simply, it depends. In Ontario, everyone is entitled to a “reasonable expectation of privacy”; however, it appears that the difficulty for most people is in determining what a reasonable expectation of privacy actually means. If you’ve thought about recording your ex on camera for legitimate reasons, but you’re unsure if what you’re planning to do is okay, ask yourself these questions:
Who do you want to record video of? Is it just your ex? Their new love interest? Their colleagues or friends? Other people that your ex interacts with?
What do you want to video record exactly?
Where do you want to conduct these recordings? Are they in public? Are they in private? Are you a party to the event you are recording or are you observing as an outsider?
When will the recording occur? Does taking video at this time have the potential to ruin an event or cause trauma or disruption of some sort?
Why do you want to record your ex on video? Is there a legal purpose? Is it a personal purpose? Do you need “proof” of them doing something?
How do you plan to record the video? Are you planning to hold a visible video camera or phone and let them see that you are making the recording? Are you planning to hide the camera in some way and secretly record the video without your ex knowing that it is happening?
The above questions do not constitute EVERY question that you should ask yourself, but they do form a solid basis and offer a general idea of the line of thinking that is necessary. Generally speaking, it’s not the act of recording the video that is the key problem to consider.
The thought processes and motives for the video being recorded, the maintenance or use of the video once it’s recorded, and the intentions and actual actions taken with the video following it being obtained are usually more significant.
There is also one more very big consideration; are you taking the video, or have you hired a professional, such as a private investigator, to capture the footage?
Private investigators do have certain rights and understandings with the courts based on their official licensing and inherent responsibility level, which allows them to create video recordings of individuals and subsequently generate proper evidence for use in courts. If your intention to make and use video is for evidence that will be presented in court, you would be well-advised to hire a private investigator to make those video recordings, or at the very least, consult with your legal team before proceeding.
While there are obvious limits to what you can or should record your ex doing, there is also a degree of common sense that must be applied. For example, if you record your child playing in the park and your ex happens to walk through the shot, that is much different than if you were driving around town following your ex and filming them without their knowledge.
Whatever your motives, when it comes to recording video of your ex (or anyone associated with your ex), it’s always in your best interests to either: A) get their permission, B) consult with your legal team, C) hire a qualified investigator, or D) do all of the above.