With restrictions in place across much of the world as a result of the COVID-19 pandemic, the digital space has been indispensable in allowing much of society to continue to move forward. In the legal realm, many hearings have transitioned from the courtroom to video conferences, using technology such as Zoom.
While this has been key in allowing courts to work through the backlog that accumulated during the initial closures, it has also presented some novel challenges. Many people were tickled, for example, when a lawyer in the U.S. enabled a Zoom filter that made him look decidedly feline and could not disable it in a timely fashion, prompting him to assure the court that he was “not a cat”. However, some digital challenges have been much less humourous, with potentially devastating consequences.
Recently, another U.S. case garnered attention when a criminal hearing in an assault matter live-streamed over YouTube was abruptly halted when the prosecuting lawyer began to suspect that the accused and the complainant had each joined the hearing from the same location. Given the nature of the charges, there was a serious concern for the complainant’s safety. The accused maintained that he was in a separate residence until the police knocked on the complainant’s door and arrested the accused in view of everyone watching.
In a recent Ontario case, a mother and father were involved in high-conflict litigation over parenting, access and mobility rights pertaining to their young child. The father, a resident of Oregon, met the mother, a citizen of India and a permanent resident in Canada, in 2017. The pair were married after three months and had a child the following year. However, the relationship broke down quickly and the mother returned to Canada shortly after becoming pregnant in 2018.
The relationship was heavily strained and ended up in volatile litigation pertaining to the couple’s parenting rights. As part of the four-month trial, the mother presented a variety of evidence to discredit the father, ranging from printed emails, paternity tests and witness testimony. However, much of this evidence turned out to have been falsified or otherwise manipulated.
As part of the evidentiary record, the mother submitted a paternity test that had been clearly altered to say the father was not the biological father of the child. In addition, she had forged a sperm donor agreement, purportedly signed by the father, the mother, and the mother’s former husband. She had also called a witness she claimed was her first husband to testify over Zoom. When answering the prepared questions, the witness read his answers, and under cross-examination, he could be seen glancing at his phone regularly. The mother was notably off-camera at these times. When the judge asked her to step into the camera’s frame, the witness “froze his screen” and provided no further testimony.
In what the judge noted was the most concerning evidence, the mother provided a series of documents to discredit the father in the court’s eyes, all of which she had created. Among the documents was a (forged) sworn statement from a friend of the father’s. In addition, the mother created a series of emails she claimed were from the father to various third parties in order to damage the father’s character. In emails sent to the child’s doctors, the sender claimed to want to place the child up for adoption due to their medical problems. In another, an email sent to a school said the father had instructed the mother to get an abortion during her pregnancy and “move on with her life”.
In the separate costs decision, the court noted that:
There is no question that [the mother] acted in bad faith throughout this proceeding…Her actions were clearly designed to inflict maximum emotional and financial harm, to deceive service providers and ultimately to manipulate the evidence before the Court.
The mother’s efforts to discredit the father using false documents and coached witnesses were damaging for many reasons. Firstly, the proceedings took much longer than necessary because the parties, including the court, were required to carefully scrutinize every piece of evidence once some forgeries were discovered. This added significant cost and time, and ultimately the mother paid a hefty financial price for her actions. In the costs award, the court ordered that she pay nearly half a million dollars to the father.
Further, not only did the forged evidence not help the mother’s case; it worked against her in the end. The court did admit the evidence as evidence of her efforts to damage the father’s character. Citing the fact that past conduct of a parent is relevant when considering custody and access matters under the Children’s Law Reform Act, the court found it was in the child’s best interests to be placed with their father in Oregon. The judge said the mother’s actions had “poisoned any possibility of joint consultation or joint decision-making”.
Wrapping up the decision, the judge cautioned other judges and lawyers to exercise particular diligence with respect to evidence submitted in digital hearings. Noting that many of the documents presented by the mother initially appeared to be authentic, the court warned that the ease of submitting “spoofed” documents was enhanced in the digital realm. The judge further stated that it was only because a few of the documents had been clearly forged that the other evidence received such close scrutiny. The court ended the decision with a call to action to those who are regularly involved in family litigation:
[T]he emotional stakes are really high in these situations, and there could be more temptation to take nefarious steps, especially in a virtual proceeding…I urge lawyers, family service providers and institutions to be on guard, and to be part of a better way forward. Courts cannot do this work alone, and the work must be done well. High conflict litigation not only damages kids and diminishes parents; it weakens society as a whole, for generations to come.
At Mincher Koeman, our family law lawyers have considerable experience in advising and advocating for clients in mediation, arbitration and traditional litigation. We will always provide honest and practical advice with respect to the best method for any family matter to proceed in order to minimize cost and inconvenience for each of our clients. Please contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
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