Today’s blog was written by Tyler Lin, student-at-law at de VRIES LITIGATION LLP

Widespread embrace of social media has brought text messages, e-mails, and postings to the forefront of evidence in criminal, civil and family law disputes. These sources are supposed to allow judges to glean insight into the life and deeds of the disputing parties. However, in this era of “fake news,” technologies have developed that make it easier than ever to generate and alter electronic records.

The term “spoofing” is used in family law to describe the creation of inauthentic evidence. Accessible technology now allows users to alter mobile applications and e-mails, to change their voice during phone calls, to edit records, and even to assume the identity of another person or institution.

Detecting fake electronic evidence will be a significant challenge for all areas of law moving forward. The Court of Appeal for Ontario foreshadowed this challenge in R v. C.B., 2019 ONCA 380. More recently, the impact of fake electronic evidence in litigation was addressed head on in Lenihan v. Shankar, 2021 ONSC 330 (Ont. S.C.J.).

Lenihan was an intensely litigated custody, access, and mobility claim. The toddler has been in her mother’s care since birth. The mother went to great lengths to prevent the toddler’s father from establishing a personal relationship with his daughter, going so far as to try to hide their daughter’s existence from him.

In this four-week, in-person trial, the Court found that social media evidence submitted by the mother were forgeries. This included an altered paternity test, a forged “Sperm Donor Agreement,” and a sham e-mail exchange between the father and his counsel which suggested they were planning a criminal act to remove the mother from litigation. The Court found that these fake electronic records were created in order to gain a litigation advantage over the father.

The admissibility of electronic evidence or records is governed in two stages by two statutes. The first is subsections 34.1(5) to (7) of Ontario’s Evidence Act, R.S.O. 1990, c. E-23 which provides for a relatively low threshold for admitting electronic records. At this stage, concerns are generally limited to whether the evidentiary record is complete and accurate.

The second stage is section 31.1 of the Canada Evidence Act, R.S.C., 1985, c. C-5, which focuses on the authentication of the electronic evidence. The Canada Evidence Act places the burden of proving a document’s authenticity on the party seeking to admit it as evidence. In other words, this is the stage at which a Court will look for evidence of spoofing.

At trial, the mother was unable to meet the burden of authenticating the electronic records she submitted as evidence. Among other things, she could not demonstrate that the e-mails and screenshots of the father’s Instagram account were authentic. When questioned about the records, which appeared to be altered, the Court found that her explanations lacked an air of reality.

The mother’s counsel withdrew representation upon realizing their unwitting participation in placing false evidence before the court. The mother then boarded a plane for India and never came back. At the conclusion of the trial, the Court found that the father was a more than capable parent and awarded him custody of his daughter. Nevertheless, the decision was not reached until significant financial and emotional turmoil had expended and extensive investigations by the Children’s Aid Society of Toronto and Peel had occurred.

In his closing remarks, Justice McGee framed this case as a cautionary tale. Our courts are transitioning to a fully digital platform. Along with the advantages of this transition, there will also be challenges. More reliance on digital evidence will mean a higher potential for tampering.

The consequence of spoofing digital evidence can damage children, traumatize parents, and weaken society as a whole. In order to obtain the upper hand in this new “catch-me-if-you-can” game of credibility in our digital age, Justice McGee called upon lawyers, family service providers, and institutions to be on guard. The Courts cannot do this work alone.