Electronic evidence refers video or audio recordings, emails, Facebook posts and cell phone recordings, amongst many other things. They are often useful to courts and can provide meaningful evidence to a Judge, however they also have the potential for serious misuse such as strategically editing and forging such evidence. In family law cases litigants often find things posted on social media or via text message are used in courts. It is important to be cautious when using such means to communication that nothing is said or done that may later be used against you in a court proceeding to your detriment.
Under the Canadian Evidence Act, s.31.1 a party seeking to admit an electronic document in court is responsible for providing its authenticity and must produce evidence capable of supporting a finding that the electronic document is what it purports to be.
In the recent case of Lenihan v. Shankar, 2021 CarswellOnt 364 (S.C.J.) Justice McGee discussed issues arising with the increased use of electronic evidence in family matters. Specifically, the potential for misuse of such evidence in high conflict cases. She stated, “Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence: direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.” She urged that parties and lawyers in such family matters to be on guard for potential misuses.
In this particular case, the mother engaged in a concerted effort to alienate a two year of child from her father. There was a lengthy four-week custody trial where the court ended up disregarding much of the mother’s evidence as much of it was fake and forged, including a forged paternity test and sperm donor agreement along with fake emails between the father and his lawyer that purported to show them planning a criminal act against the mother. She further had a witness who claimed to be the mother’s first husband. Justice McGee disqualified the witness finding that “he was not who he was presented to be.”
Ultimately, the mother’s attempts to fake evidence resulted in a hefty cost order against her of $438,000.00. The court also granted the father custody of the child. This should serve as a warning to litigants that attempting such tactics to gain advantage during litigation will not be tolerated by the court. It is likely that issues such as this will continue to arise given the increasing use of electronic evidence in family law matters and the rapidly evolving technology that makes catching forgeries more difficult. Parties, courts and lawyers have be more vigilant in ensuring that false electronic evidence is not being used. It is recommended that you contact a lawyer to discuss these issues and any questions you may have relating to the use of electronic evidence in your family matter.
