Family

‘Gotcha’ cellphone recordings rarely admitted in divorce cases

By AdvocateDaily.com Staff

Judges are usually reluctant to admit cellphone evidence collected by a spouse to boost their divorce case against an ex-partner, says Toronto family lawyer Lisa Gelman.

Gelman, principal of Gelman & Associates, says clients often ask her about the possibility of introducing secretly recorded cellphone footage or voice recordings purporting to discredit a former spouse, especially in cases involving disputes over custody of the children.

“Ninety-nine times out of 100, the judge is not going to want to see the video or listen to a recorded conversation as part of the evidence,” she tells AdvocateDaily.com. “The reason is that people can stage recordings, and make it seem like the other person is more angry or abusive than usual.

“It can be very difficult for the judge to determine whether the recording is completely factual or taken out of context.”

In fact, Gelman says an attempt to trick a former spouse into incriminating themselves in some way is just as likely to backfire on the party making the recording.

In order to determine whether certain evidence is admissible, a judge may look at a transcript of the recording, or they may view the entire thing. Either way, they are expected to disregard evidence deemed inadmissible, but she says there’s still a chance the attempt to submit iffy evidence may colour the judge’s view of that party.

“Often, parties are trying to recreate a conversation that has taken place previously,” Gelman explains. “Even if they’re not doing it maliciously, by creating a new context, they can make things worse because judges can hear that it sounds artificial and might think there is more going on than meets the eye.”

In the very few cases where she has seen cellphone footage successfully entered into evidence, Gelman says they tend to involve videos that unequivocally and directly contradict earlier evidence given by the subject of the recording.

“For example, you might see a situation where one parent says they have never hit the child, and then the other parent produces a video that shows the person doing just that,” Gelman says. “In that situation, it’s less of an exchange between people, but evidence of a certain act, and that would be something that would likely be admitted in court and taken seriously.”

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