Can I Legally Record My Spouse in Canada? What You Need to Know During Separation and Divorce

When you’re in the middle of a high-conflict separation or divorce, it can be tempting to record your Ex during a heated conversation — especially if you think what they say might help in your litigation. But is it legal to secretly hit “record” on your phone? And if so, can that recording be used in court?  

Let’s break down the law in Canada when it comes to recording conversations — especially in the Family Law context. 

Yes, It Can be Legal… 

Canada’s main laws on this are actually found the Criminal Code.  Section 184 makes it a crime to “intercept” a private communication – unless at least one party consents to the recording. 

To be clear:  

• You can legally record a conversation if you are one of the people in the conversation. 

• You cannot legally record a conversation between two other people if you are not part of it, unless you have their consent. 

This means that if you and your spouse are talking by phone and you hit record—you’re not breaking the law. But if you secretly plant a recording device to catch them speaking to someone else, that could be a criminal offence. 

… But It’s Not Necessarily Admissible  

With that in mind, for the purposes of the rest of this Blog we’ll assume that you have recorded your spouse without violating any criminal laws, but – as we’ll see – this does not necessarily mean the recording will be admissible in your Family litigation.   

That’s because even if your recording is legal, judges don’t always allow it to be admitted as evidence.  While there is no absolute rule against secret recordings, they are “strongly discouraged” (see Hameed v. Hameed, 2006 ONCJ 274; and Drodge v. Gajadhar, 2025 ONSC 244). 

The truth is that Family courts have good reason to be cautious when it comes to secret recordings. They tend to fan the flames of litigation, and encourage separated spouses / parents to engage in one-upmanship, sneakiness, and various underhanded tactics.  The offend the privacy interests of the parties involved, and are destructive to the “maintenance, restructuring, and encouragement of constructive family relationships” Veljanovski v Veljanovski,  2016 ONSC 2047 (CanLII) at para. 49.  Especially if there are children in the mix, the courts see the huge upside in not encouraging this kind of behaviour.   

There’s a “Rebuttable Presumption”   

This is where the law steps in, with an established test.  The starting point is that secret recordings are not be routinely admitted as evidence, due to “strong public policy reasons” (Arbitman v. Lee, 2021 ONSC 315 at para. 18).  Instead, there is a rebuttable presumption against admitting them, except in unusual circumstances.  The judge will look for exceptional circumstances (e.g. serious misconduct or family violence) and then will still assess the secret recording using various tests – mainly that the recording has “strong probative value” (see Drodge v. Gajadhar, 2025 ONSC 244; S.C.H. v. S.R., 2023 ONSC 4928 at paras. 601 to 613; and Patel v. Patel, 2023 ONSC 6307).  

In a case called Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at paras. 30-43 the court explained the principles this way:  

The only way that judges can effectively discourage such conduct is to refrain from rewarding it. To do that, courts must presume that the prejudicial effect of those secret recordings far outweighs their probative value to our system of family law and the best interests of the children affected by it. That presumption cannot be rebutted short of evidence disclosing serious misconduct by a parent, significant risk to a child’s safety or security, or a threat to another interest central to the need to do justice between the parties and children. Short of such evidence, courts must say “hands (or phones) off” the recording feature of parents’ smart phones when they seek to secretly record each other and their children. 

Note that if you’re the party who wants to have the recording admitted as evidence in your Family proceedings, then the burden will fall on you to rebut the presumption against doing so (see Hameed v. Hameed, 2006 ONCJ 274 at para. 13).   

At the end of the day, this legal hurdle essentially gives the courts a gatekeeper function.  Even if the judge in your Family law matter doesn’t outright rule that your surreptitious recording is inadmissible, he or she can decide that it should be given drastically diminished weight in the overall litigation.  

The Exceptions  

So what kinds of scenarios will rebut the legal presumption against admitting this type of evidence?   

They are relatively uncommon, and typically involve scenarios where there is family violence, serious misconduct by one or both parties, or other circumstances that might impact the judge’s assessment of what the best interest of a child may be.  

For example, in the recent case of Kidd v Mokrenko, 2024 ONSC 4002 the judge admitted surreptitiously-recorded video to demonstrate the atmosphere of family violence, and both parents’ propensity to use abusive and profane language very casually with one another. The fact that they did it in front of the child was “deeply troubling”, the judge said.  It was an indication of whether the parents were able and willing to communicate and co-operate with one another on matters affecting the child.   

Likewise, in another case called Ammar v. Smith, 2021 ONSC 3204 the judge heard evidence that one of the parents was denigrating the other in front of the child, which the court concluded was tantamount to family violence – which in turn affected the judge’s decision on how to allocate parenting time and decision-making responsibility.  

Think Twice Before Pressing “Record” 

While it may be legal to record your Ex if you’re part of the conversation, it doesn’t always help your case—and it may even hurt it. Judges are focused on the best interests of your children, and hostile behaviour in the form of illegal recordings can reflect poorly on you as the parent doing it. 

But even when a secretly-recorded conversation is not technically illegal, it might be ill-advised, depending on the court’s view of things.  Here’s what the Family courts will generally consider: 

• Was the recording lawful? 

• Was the recording relevant to the legal issues at hand (e.g., parenting, threats, abuse)? 

• Was it made in good faith—or just to embarrass, harass, or strategically escalate matters? 

• Was it edited, or does it reflect the whole conversation? 

Judges want to see the bigger picture, and a recording can backfire against you especially if you have malintent – for example if you made the recording to try and provoke a reaction.  

Final thoughts 

If you’re going through a separation or divorce, it’s natural to want to protect yourself – particularly if you fear your Ex will be dishonest or malicious. But secret recordings are a legal and strategic minefield. If you’re unsure whether recording your Ex will help or hinder your position, come speak with one of our experienced Family lawyers first. A little advice now can save you a lot of trouble later.