In a recent Ontario decision, as a preliminary matter, the court had to determine whether a son’s surreptitious audio recordings of his mother’s conversations could be admitted into evidence in an estate dispute.

Mother Changes Her Estate Plans

The mother is 91 years old. She lives in the same home as her son, and also has a daughter.

In 2016, the mother signed powers of attorney in which she named the son as her attorney for property and for personal care. The 2016 power of attorney for personal care thus replaced a 2009 power of attorney which named both the daughter and the son as her attorneys, jointly and severally.

Further, in 2016, the mother signed a new will in which she named the son as her executor and as the beneficiary of the residue of her estate. This 2016 will replaced a 2009 will which divided the residue of her estate equally among the son, the daughter and a grandson.

Siblings Go to Court over Mother’s Estate Plans

The son and the daughter went to court over numerous issues.

The daughter argued that the mother did not have the mental capacity to execute the 2016 powers of attorney and they should be declared invalid. She also sought to be appointed the mother’s guardian.

In his application, the son sought a declaration that the 2016 powers of attorney for property and personal care were valid. Alternatively, he sought orders appointing him as the mother’s guardian of property and of the person and approval of his management and guardianship plans.

Son Records Mother’s Telephone and In-Person Conversations

Following a 2016 conversation with the daughter, in which the son alleged that she threatened him and the mother, he decided to start recording telephone conversations with the daughter as evidence he could take to the police, if necessary.

He therefore attached a recording device to the phone in his mother’s house and recorded all of her calls. He also stated that he later started to record the mother’s in-person conversations using a different device.

The son claimed that the mother knew and fully approved of his recordings, although he admitted that the daughter had not consented to being recorded.

Son Seeks to Have Audio Recordings Admitted Into Evidence

As part of his application, the son asked the court to be allowed to introduce into evidence 15 recordings he had made of the mother’s telephone conversations in 2017. Most were recordings of conversations between the mother and the daughter.

The son told the court that he wanted the audio recordings of conversations between the mother and the daughter to be admitted because they demonstrated that the daughter had been manipulative and untruthful. Additionally, he argued that the recordings would give the mother a voice at the trial.

In response, the daughter objected to their admission into evidence primarily because she claimed that the son had cherry-picked from all of the conversations he had recorded and was seeking to admit only those he believed supported his position or cast her in a bad light. She also argued that the recordings violated the mother’s privacy because she did not believe that the mother had consented to being recorded.

Additionally, the daughter sought to admit two of the son’s in-person recordings between the son and the mother in support of her application.

Court Allows Audio Recordings Into Evidence

In its analysis, the court began by explaining that s. 184 of the Criminal Code prohibits the interception of private telephone conversations without the consent of the person who initiated the conversation, or the person who was intended to receive it. However, the court also explained that, even if the recordings at issue had been obtained surreptitiously or illegally, the recordings were not necessarily inadmissible, stating:

“Although there are exceptions, the manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission at common law. This general inclusionary rule applies equally to criminal and civil cases.”

The court then stated that it did not accept the son’s claim that the mother knew he was recording her or that she had given him authorization to do so. The court then observed:

“Surreptitious audio and video recordings should be strongly discouraged by the courts. This is a regular refrain in family law cases…. Although the case before me does not involve family law, it is a case involving a family, and many of the reasons for discouraging secret recordings in family law cases apply equally here, including the distrust they foster and their toxic effect on future relationships.

That said, if I were to exclude the recordings and the evidence that flowed from them, I would be left to decide the case based on a record I know to be incomplete.”

Ultimately, the court concluded that the recordings were admissible, but specified that it would place little weight on the mother’s side of the conversations. The court also allowed the daughter’s request to introduce the two in-person recordings.

Contact Campbells LLP for Experienced Advice on Estate Planning

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out.

An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estate lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with Wills and estates matter since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective.

At Campbells LLP, we are proud of the strong, long-lasting relationships we build with the clients for whom we craft Wills and estate plans. With our help, you can ensure that your family and loved ones are taken care of, that your wealth is distributed as you wish, and that the risk of any potential litigation is minimized.  Our overall mission is to provide the right solution for each and every one of our clients. Contact us online or at (905) 828-2247 to learn more about our services.