Is Recording My Spouse Legal? Separation and Family Law in BC | YLaw

High conflict family law cases are filled with spouses recording each other in various situations such as at custody exchanges, schools where children are dropped off or picked up, during arguments at home or outside.

Although many ex-spouses do this to protect themselves or prove a point, recording someone and using it as evidence is always tricky. Specially in the context of family law cases where stress levels and conflicts run high, and the court do not like to encourage further threatening or destructive behavior.

Many people wonder, is recording your spouse in BC legal? But before you press record, it’s important to understand the legal implication. Recording conversations, especially with a spouse, isn’t as straightforward as it seems, and getting it wrong can have serious consequences.

Is It Legal to Record My Spouse in BC?

In British Columbia, the law on recording conversations falls under the Criminal Code. The general rule is:

You can record a conversation, if you are a participant in it.

You cannot secretly record a conversation you are not part of. 

This is called one-party consent. So, if you and your spouse are talking, you can hit record without telling them. But if you leave a phone in the room to record them talking to someone else? That’s illegal and could land you in hot water.

Will the Court Accept a Recording of Your Spouse in BC?

Even if a recording is legal, that doesn’t mean the court will like it. Family law judges have a lot of discretion, and they tend to frown upon secret recordings, especially if they seem manipulative or taken out of context.

That said, courts tend to scrutinize secret recordings closely. In A.M.E.R. v. P.J.R., 2003 BCSC 1466, the court outlined that recordings must satisfy criteria of:

1. Relevance – Does it actually help prove something in dispute?
2. Identification – Is it clear who is speaking?
3. Trustworthiness – Is it the complete conversation? Has it been edited or taken out of context?
4. More Helpful than Harmful – Even if it’s relevant, is it so harmful or misleading that its negatives outweigh its usefulness?

When Might a Recording Help?

There are situations where courts have allowed recordings as evidence, including:

• Proving abuse or threats – If you fear for your safety, a recording could be key evidence to show the court. (Surrett v. Butkiewicz, 2018 BCSC 1380)
• Showing contradictory statements – If your spouse is saying one thing in court documents but another in real life.
• Parenting Disputes – If exchanges between parents are difficult or contentious. (Finch v. Finch 2014 BCSC 653)

When Might a Recording Hurt You?

Even if a recording is legally obtained, it could backfire if it looks like you were setting up your spouse. Courts frown upon recordings that appear staged, manipulative, or designed to provoke reactions.

In Van Ruyven v. Van Ruyven, 2021 ONSC 5963, both parties secretly recorded each other, but the court refused to listen to them, stating that courts should exercise “extreme caution” in admitting such evidence in family litigation. There is a presumption that the prejudicial effect of recordings outweighs their probative value, except in cases where there is:

• Serious misconduct by a parent
• Significant risk to a child’s safety or security
• a threat to justice

This means that if you secretly record your spouse just to use it in court, it may not work in your favour and could even harm your credibility.

The Bottom Line

Yes, you can record your spouse in some cases. But should you? Probably not, unless in extreme situations.

Secretly recording your spouse might feel empowering in the moment, but it can easily blow up in your face if it’s done for the wrong reasons or submitted at the wrong time. If you’re even considering recording your spouse, please, please talk to an experienced family lawyer. They can help you understand the legal implications and advise you on the best way forward. At YLaw, we’re here to help you navigate these tough issues, contact us here or call us at (604) 974-9529.