Sticks and StonesPosted by Scott Taylor
When words can do damage!
There’s an age old saying that goes something like “sticks and stones may break my bones, but names will never hurt me.”
But if you’re in the middle of a nasty separation or divorce, with bitterly contested custody issues at stake, then names, or for that matter, whatever you say to your ex can definitely come back to hurt you big time, and in the riskiest place of all, family court.
How can that be, you say?
I’m referring to a situation where your ex surreptitiously records your telephone conversation, without your knowledge or consent, and then attempts to have the audio recordings and transcript entered into evidence at a court proceeding to support their child custody claims.
You’re probably thinking, as I originally did, that recording your conversation without your knowledge or consent must be illegal in the first place, and as a result inadmissible.
Surprisingly not. Years ago, not sure when, it was a criminal code offence to secretly record a conversation with someone and accordingly, courts refused to allow such conversations into evidence.
But that’s no longer the case. Something I came to learn firsthand when preparing my client for trial, with the focus on unresolved custody and access related issues. My client’s spouse had recently recorded conversations about the children with him, and was now seeking to have those recorded conversations entered into evidence at trial.
The only guidelines to the admissibility of such recordings is whether the recordings are relevant, and a technically accurate recording of the actual conversation.
What I find especially odious about this practice, apart from the outright deceptiveness, is the fact that such recorded conversations are totally self-serving attempts to entrap the unknown parent into saying things they may, under normal circumstances, never say about the other parent, or children.
On the other hand, such conversations enable the parent who is making the recording, to put themselves in the best possible light, as it relates to the children.
Something to think about next time you’re talking on the phone with your ex, and you’re asked to repeat what you’ve just said, only louder and clearer this time!