Can I Use Text Messages and Recordings as Evidence in Custody?

When a parenting dispute heats up, many parents realize their phone is full of material: angry texts, emails about schedules, voicemails, maybe a recorded call. It is natural to wonder whether any of it will help in court, and whether it is safe to start recording now.

This article explains in plain language how this kind of evidence generally works in Ontario family court, where the risks are, and how to organize what you have. It is general information, not advice on your case, and a lawyer can tell you how the rules apply to your facts.

What kinds of messages and recordings people bring

Most parents bring some mix of the items below. Each can be useful, but only if it is real, relevant and presented in a manageable way.

• Texts and app messages about pickups, schedules, expenses or the children
• Emails between you and the other parent
• Voicemails and recorded phone or video calls
• Messages sent to or received by the children
• Screenshots and photos that show dates, injuries or conditions in a home

Whatever the format, the question the judge is ultimately answering is what arrangement is in the child's best interests. In making a parenting or contact order, only the child's best interests count, with primary consideration given to the child's physical, emotional and psychological safety, security and well-being. Evidence that does not help answer that question is unlikely to be worth the pages it takes up.

Recording calls: when it is risky

Under the Criminal Code, knowingly intercepting a private communication with a device is an offence, punishable by up to 5 years on indictment or on summary conviction. It is not an offence if the person who made the communication, or the intended recipient, consents, expressly or by implication.

In practical terms, a parent who is a party to a call can generally record it, but secretly recording a conversation between other people is a risk. Examples of the risky kind include leaving a phone recording in a room while the other parent talks to someone else, or recording a call between the other parent and the child when you are not on the line.

Even a lawful recording can look bad if it seems staged or if you provoked the other parent. Whether a court will accept or give weight to a particular recording depends on the facts, so get advice before you rely on one.

Proving that a message or recording is genuine

Under the federal Canada Evidence Act, a person seeking to admit an electronic document has the burden of proving that it is authentic. That Act applies to federal proceedings, and Ontario family courts apply the Ontario Evidence Act, so a lawyer should confirm the equivalent rule before you rely on it. The practical lesson is the same: be ready to show that a message is what you say it is.

For trial, documents used as evidence generally must be originals that are genuine, relevant and necessary, and a witness has to identify the document at trial before it can be used. That means you should keep the original messages on your phone or account, not only screenshots, and be ready to explain how you got them.

• Keep the original messages and do not delete any thread, even the parts that do not help you
• Take screenshots that show the full date, time and the sender's name or number
• Save voicemails and recordings in their original file format and note the date you made them
• Back everything up in a second place
• Write down, in a few lines, who was involved and what the context was

Keeping it short: page limits in court

More is not better. The Superior Court practice direction says affidavit exhibits should not exceed 10 pages and must be limited to necessary and relevant evidence. Parties are told not to include voluminous texts, emails or social media postings, and to attach only relevant excerpts.

These limits are from the Superior Court practice direction, so check which court your case is in and what its rules require. In a case with hundreds of messages, choosing the few that matter is part of the work.

What to do next

Start by gathering and preserving what you already have, then decide what is actually relevant to the parenting issues in dispute. Be careful about starting to record anyone from now on, and avoid sending messages meant mainly to provoke a reaction. Calm, brief and child-focused messages tend to read better than anything else.

• Preserve all original messages, emails and recordings
• Do not secretly record conversations you are not part of
• Make a short index: date, who, what it shows, why it matters
• Pick the key excerpts rather than whole threads
• If safety is a concern, tell a lawyer or the police and plan for your safety first
• Ask a lawyer whether a particular recording can safely be used

Frequently asked questions