Hint ... It's probably not a great idea. It's probably a really bad one actually.
It's generally considered a REALLY bad idea for a variety of reasons that show up in case law all the time, to not even record video let alone submit it as evidence. The court typically takes a very dim view on the person doing the recording unless :
The probative value of the video, outweighs the disrepute it brings to the court.
So what does that mean? Simply put the court finds it particularly unsavory for these videos to be put before the court unless its content is so valuable that the court needs to rely on it.
But why does the court hold such a low regard for these videos to begin with?
If children see the recording happening, or made aware of it after the fact, they are left with the impression that the parent being recorded is not trustworthy and therefore they may not be safe in that person's care.
The person doing the recording is typically on their best behavior for the camera, while the person being recording may be misbehaving uncharacteristically bad, especially if the recording was surreptitiously taken.
And when the recording is done in full view of the other parent, that other parent may be antagonized by the video recording and needlessly provoked in to bad behavior unfairly.
At a practical level, the person doing the recording is more often than not, unaware of how their own behavior in the video may not be to their benefit. They may be passive aggressive, egging the other person on, or simply taking a video that really doesn't show much and yet they are fixated on it which speaks more to their willingness to engage and escalate conflict, than de-escalate conflict. It also demonstrates that the person recording the video is more concerned with taking the video than perhaps ensuring a smooth transition with the children.
So when is it ok?
Yes, there are some exceptions, assuming that the video/audio actually shows something substantial and not just parents irritated with each other. It still has to be significant and not fall into the "who cares" column.
For example:
If its the "door bell ring cam" or other obvious security cameras. Both parties are aware of it, no one is shoving a phone in the other's face, and presumably capturing behavior not amplified by in-your-face-recording and it's not impacting the children.
Real physical abuse is captured.
Horrible things being said directly to a child.
General criminal acts such as destruction of property, or DUI.
Severe intoxication while caring for, or picking up a child.
Supporting Caselaw
Edited here, but you can lookup the entire text.
[32] The father’s evidence included a cell phone video he took of a recent argument which ensued when the mother brought Rachael to his residence. The context is disputed:
...
g. But instead the father started video recording the confrontation on his cell phone. And – as always happens – as soon as one parent hit the “record” button, they both started playing to the camera. With their young daughter being the tragically captive audience.
h. The three-and-a-half minute video shows the mother holding a deeply anguished four-year-old in her arms, while the adults shout – back and forth...and back and forth -- each of them so preoccupied with creating electronic evidence that they completely ignored the child they pretend to be protecting.
i. The father thought creating a video would make the mother look bad. Instead, it made the cameraman look worse.
[33] Electronic recording of parenting exchanges and interactions is a growing trend which should be strongly discouraged. It puts the child in the middle. It exacerbates tensions and creates a heightened sense of potential or imminent conflict. It clearly demonstrates that the parent holding the camera is focussing more on the litigation than the emotional well-being of the child. Guadalaxara v. Viau, 2014 ONSC 545 (SCJ); Luke v. Luke, 2014 ONSC 422 (OCJ); K.M. v. J.R., 2022 ONSC 111 (SCJ).
[34] This court warned against these misguided home movies in Whidden v Ellwood, 2016 ONSC 6938(SCJ):
96 Parents in custody disputes really need to stop taking photographs and videos of one another during access exchanges.
d. They should stop pretending they're assisting the court by assembling important evidence.
e. The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.
f. Access exchanges in high conflict files are already tough enough for children. Pointing a camera — or multiple cameras — at the interaction merely heightens the child's unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.
g. Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.
h. Talk about spoiling a happy moment. (Again, perhaps that's the intention.)
97 How do we stop this epidemic of smartphone nonsense in Family Court?
a. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.
b. We need to make it clear to parents that taking videos is not likely to help you win your case. It's more likely to backfire. To cause the judge to worry about your parental judgment.
c. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.
d. What message is the videographer conveying to the child? "look how bad your father is", "I'm going to record this so everyone will see what a horrible mother you have!", "Be careful, the parent you love can't be trusted".
e. Perhaps the more cynical and prophetical message: "Showtime"
f. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?
g. When parents routinely pull out their cameras, ready to "click" at the slightest false move -- like gunslingers squaring off at the O.K. Corral — are they doing it out of love for a child? Or hate?
h. No matter what image they hope to record, it can't be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.
[48] The videotaping that is engaged in by the Father’s partner, Jessica, and other non-parties to this proceeding, does not assist with communication issues. The Father by way of condoning this action is not demonstrating cooperation. The communication when a videotape is running is artificial in nature - it is not in the children’s best interest.
[8] That clear recommendation is not surprising given what judges have said, repeatedly, on this issue. The comments of Justice Sherr in Hameed v. Hameed, 2006 ONCJ 274, at paragraph 11, are just one example. Such recordings, especially where surreptitious (as they were here for some time, until the father became aware of it), should be strongly discouraged. The recording process is often destructive. It is often selfish. Even worse here is that the children have been implicated in the recording scheme; that is obvious when one watches the videos themselves, as I have done.
[9] Whatever probative value the past recordings may have, and this Court acknowledges that the recordings do corroborate the mother’s concerns that the father speaks, at times, inappropriately to the children, they serve no legitimate purpose going forward.
[10] The children have a very close relationship with their mother, and their ages are such that they will undoubtedly report to the mother anything that happens during the telephone calls that they are unhappy with. That evidence can be adduced at trial without the need for any voir dire if it is tendered simply for the fact that the children are uncomfortable with the calls. If the mother wishes to tender that evidence for its truth in terms of what the father is doing or saying during the calls, then the necessity of a voir dire remains a much better option than permitting these recordings to continue.
[11] In short, the sound public policy against these recordings, even non-surreptitious ones, outweighs the limited probative value of any future recordings that may be made. Sordi v. Sordi, 2011 ONCA 665, at paragraph 12
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