Surreptitious Recordings in support of Claims of Intimate Partner Violence: Mitchell v. Mitchell, 2026 ONSC 4259 and Fang v. Lu, 2026 ONSC 3617

Family courts have historically discouraged surreptitious recordings, especially where parents seek to rely on them to bolster their parenting claims. Two of the first cases awarding damages for intimate partner violence - Mitchell v. Mitchell, 2026 ONSC 4259 and Fang v. Lu, 2026 ONSC 3617 create a crucial legal shift for survivors of intimate partner violence – not only are they two of the first decisions in Ontario applying the new tort of Intimate Partner Violence as established by the Supreme Court of Canada in Ahluwalia v. Ahluwalia, 2026 SCC 16, but they are also two of the earliest decisions (if not the first) to confirm the value of surreptitious recordings where used to support claims of intimate partner violence.

History of Jurisprudence on Surreptitious Recordings

Courts have historically been hesitant to routinely admit surreptitious recordings into evidence in the context of parenting claims – such recordings exacerbate tension and undermine the rebuilding of trust between parents, to the detriment of their children’s best interests and the ongoing parenting relationship. In Van Ruyven v. Van Ruyven, 2021 ONSC 5963, both parents asked the court to listen to surreptitious recordings made of the other and/or their child. Justice Kurz refused, quoting from Justice Sherr in Hameed v. Hameed, 2006 ONCJ 274, that “[i]n a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.” [1]

Similarly, in K.M. v. J.R., 2022 ONSC 111, Justice Pazaratz listed several reasons against admitting surreptitious recordings:

• Recordings may damage the credibility of the party seeking to admit the recordings, if their efforts to do so appear unwarranted and devious; and
• Surreptitious recording, particularly overt recording of a child for strategic purposes, is a betrayal of trust and a theft of innocence. By needlessly putting a child through such an anxiety-producing experience, there is a “100% chance” that the parent will appear to be “a selfish, insensitive, exploitive parent.”

In this case, although the parents consented to some recordings being admitted into evidence, Justice Pazaratz observed that the parents had “become so obsessed with gathering damaging evidence against one another that they have lost track of the devastating consequences of their actions on the child.” [2]

While there is judicial discretion to permit surreptitious recordings into evidence, the presumption is that their prejudicial effect outweighs their probative value to the family law system and the best interests of the children – the party seeking to admit the recordings must show that its probative value outweighs these strong policy factors supporting their exclusion. The 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 the children.” [3]

 There are also reliability concerns – surreptitious recordings may be edited, selectively recorded, “provoked” or “staged” by the recording party. As a result, even when admitted, the court may give the recordings little weight. In Tillger v. Tillger, 2019 ONSC 1463, the Applicant Father sought to admit surreptitious recordings of the Respondent Mother. In declining to give some recordings much weight and striking the remaining recordings from the father’s affidavits, Justice Ricchetti raised the following general concerns regarding the reliability of surreptitious recordings:

• The recording likely reflects the "artificial" conduct of the party recording, and may only demonstrate an isolated incident; and
• The recording may have been selectively chosen or edited, removing important parts or the entirety of segments, and therefore likely does not reflect the entire interaction or the context of the interaction. [4]

New Developments on the Use of Surreptitious Recordings

The tide seems to be changing, however, where survivors seek to admit surreptitious recordings in support of their claims of intimate partner violence – the court is more willing to admit these recordings in recognition of the fact that intimate partner violence often occurs behind closed doors: see Mitchell v. Mitchell, 2026 ONSC 4259 and Fang v. Lu, 2026 ONSC 3617, citing Barendregt v. Grebliunas, 2022 SCC 22.

In Mitchell v. Mitchell, 2026 ONSC 4259, the Applicant Wife was subject to years-long abuse by the Respondent Husband during their marriage of 54 years. The husband perpetrated physical, verbal, psychological and financial abuse, and engaged in a pattern of degrading, violent, coercive and controlling behaviour. The wife’s testimony of the husband’s abuse was supplemented by surreptitious audio recordings of telephone calls between the wife and the husband post-separation, which she sought to admit into evidence. [5]

Justice Vella explicitly held that the general public policy admonition against the admission of surreptitious recordings in family law proceedings was not persuasive in the context of intimate partner violence-related tort claims – “It is well known that many alleged acts of family violence occur in private: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at paras. 144, 145, 183, 186. Public policy favours the admission of recordings, surreptitious or not (provided they are reliable and authenticated), of events of alleged family violence… Furthermore, the primary concern in the admissibility of surreptitious recordings in family disputes is the preservation of good faith relations between spouses particularly where the best interests of the children are impacted. In this case, by 2021, there were no dependent children, and no good faith relations remained to be preserved.” [emphasis added] In fact, all four (4) children, who were now adults, corroborated the wife’s testimony of the husband’s abuse.[6]

In this case, Justice Vella exercised her discretion and admitted the recordings –they were probative to demonstrate the husband’s hostility, threats and pattern of harassment in support of the wife’s tort claims, and their probative value outweighed any prejudice to the husband. The recordings supported the wife and the children’s characterization of the husband as “angry, intimidating, threatening, and using profanity, belittling, and demeaning language towards [the wife].” [7]

In Fang v. Lu, 2026 ONSC 3617, the Applicant Wife filed videos in evidence of the Respondent Husband’s verbal abuse – the videos depicted the husband calling the wife “vile, degrading and despicable” terms and demonstrated the husband’s “aggressive, angry and belligerent” behaviour towards her. [8]

Justice Tobin considered the videos on the basis that they depicted behaviour by the husband that was consistent with family violence, and held “[a]s was stated in Barendregt v. Grebliunas, 2022 SCC 22, at paras. 144 and 145, domestic violence allegations are notoriously difficult to prove. Violence often takes place behind closed doors and may lack corroborating evidence. Videos, like the ones produced, assist the court in assessing whether the behaviour alleged occurred and whether it amounted to family violence.” [9] [emphasis added] ‍

Conclusion

Mitchell v. Mitchell and Fang v. Lu confirm that the general deterrence against the use of surreptitious recordings (generally arising from their use in the context of parenting claims), may not apply to claims of intimate partner violence. Recordings of abusive behaviour, provided that they are authentic and reliable, may now serve as vital, admissible evidence that exposes the lived experience of coercive control and abuse that was perpetuated in private and behind closed doors.

This blog is intended to provide legal information only. This blog does not provide legal advice. If you need legal advice, contact us or another experienced family law lawyer.

[1] Van Ruyven v. Van Ruyven, 2021 ONSC 5963, at paras. 10, 30-43; relying on Hameed v. Hameed, 2006 ONCJ 274, at para. 11.

[2] K.M. v. J.R., 2022 ONSC 111, at paras. 192-213.

[3] Melek v. Mansour, 2022 ONSC 6688, at paras. 113-119.

[4] Tillger v. Tillger, 2019 ONSC 1463, at paras. 57-88.

[5] Mitchell v. Mitchell, 2026 ONSC 4259, at paras. 225, 236-238, 451, 528.

[6] Mitchell v. Mitchell, 2026 ONSC 4259, at paras. 244-245, 268, 366; relying on Barendregt v. Grebliunas,2022 SCC 22, at paras. 144-145, 183, 186.

[7] Mitchell v. Mitchell, 2026 ONSC 4259, at paras. 236-245, 371.

[8] Fang v. Lu, 2026 ONSC 3617, at para. 264.

[9] Fang v. Lu, 2026 ONSC 3617, at paras. 233-235.

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