In the recent guardianship case, Rudin-Brown v. Brown, the court considered whether to admit into evidence recordings made of an incapable adult’s telephone conversations.

Carolyn was found to be incapable in 2018.  In 2016, Carolyn signed new power of attorney documents for personal care and property (“2016 Powers of Attorney”) appointing her son, Gordon as her attorney in both documents.  Her daughter, Missy, sought an order that the 2016 Powers of Attorney documents were invalid, seeking that Carolyn’s 2009 powers of attorney documents were in effect, or in that alternative,  that she and her sister-in-law, Jeanne, be appointed as Carolyn’s guardians of property and personal care.

Gordon’s position was that the 2016 Powers of Attorney documents were valid.  In the alternative, he wished to be appointed his mother’s guardian.  He sought to admit into evidence approximately 15 recording he made of his mother’s telephone conversations, including conversations she had with Missy about the guardianship application.

Gordon stated that he started to record his mother’s telephone conversations in 2017, she was aware that he was recording her telephone conversations, and admitting the recordings was the only way Carolyn would have a voice in the proceedings.  The audio recordings showed that Carolyn was upset by the application brought by Missy and she did not want Missy to be her guardian. Gordon had edited 40 hours of recordings into 30 hours and he sought to admit only relevant recordings.

Missy confirmed that she did not know that she was being recorded and did not believe her mother consented to the recordings.  Her position was that the recordings were an invasion of her mother’s privacy. Further, Gordon had only submitted the recordings that were favourable to his position and painted her in a negative light.

While making it clear that courts discourage surreptitious video and audio recordings, the court reluctantly admitted the audio recordings into evidence. However,

• Little weight was placed on Carolyn’s side of the conversations recorded. It was not Carolyn’s voice before the court but Carolyn’s comments as filtered and edited by Gordon;
• The recordings indicate that Carolyn did not know her conversations were being recorded as she made comments about not being able to speak on a subject in front of Gordon; and
• Carolyn’s privacy had been invaded as Gordon recorded conversations with healthcare providers, financial advisors, friends, and other family members.

While the audio recordings were admitted into evidence, it did not work in Gordon’s favour. The court found that the recordings supported the position that the 2016 Powers of Attorney were invalid as they provided evidence of Gordon’s undue influence over his mother. Finally, Gordon’s disregard for his mother’s privacy made him an unsuitable guardian.  Missy and Jeanne were appointed Carolyn’s guardian for person care and the 2009 powers of attorney for property were found to be in effect, allowing Jeanne to act as Carolyn’s attorney.

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