Catch me if you can: Case shows 'fake evidence' and witness coaching among perils of digital-age trials

Special to Financial Post

Owing to the changing landscape of technology, the evidentiary records over which judges must pore today are full of countless forms of electronic evidence. In what has become an all-too-often pattern in family law disputes, warring spouses point to text messages, social media posts and emails to bolster their positions.

The evolution of technology, of course, does not end with the creation of social media. Further technological developments have cleared a path for more insidious activities, such as the alteration of electronic documents to create a simulated and false reality. Consider, for example, “deepfake” technology in which artificial intelligence is used to undetectably swap one person for another in a video or picture.

In pursuit of fair and just outcomes, judges must assess the reliability and credibility of the evidence. In a world of deepfakes and artificial intelligence, that task is made immeasurably more difficult.

Justice Heather McGee of Ontario’s Superior Court of Justice recently encountered precisely that complexity in a four-week custody trial in which the credibility of the wife and her evidence were front and centre.

The case involved a dispute between two parents over their two-year-old daughter. According to the facts of the case laid out in the judge’s ruling, which was released earlier this year, the parties met in March 2017 in Oregon, where the husband lived and the wife was working, although she was a permanent resident of Canada and citizen of India. The wife was already married at the time, although she did not disclose her marriage to the husband. The relationship progressed quickly and the parties married three months later. Just weeks after the marriage, the wife travelled to Vancouver because she claimed — falsely, according the to the judge — her temporary return to Canada was necessary in order to maintain her Canadian permanent resident status.

In August of that year, the wife announced her pregnancy with the parties’ daughter. Shortly thereafter, the wife moved to Brampton, Ont., where the wife’s job contacts, family and family restaurant were purportedly located. In October 2017, the husband visited Brampton only to discover Ontario was home to neither the wife’s family nor a family restaurant. Following his visit, he returned to Oregon.

By the end of January 2018, following several months of a volatile, long-distance relationship, the husband considered his marriage to be over. The next month, according to the judge’s ruling, the wife lied to the husband, telling him their baby was born prematurely, was in intensive care and on a ventilator. In fact, the baby was not born until March.

The events that unfolded next, including the trial over whether the child should reside with the mother in Ontario or the father in Oregon, had all the hallmarks of a made-for-television courtroom drama.

“In an era of ‘fake news’ it should come as no surprise that from time to time, courts will be presented with fake evidence,” the judge wrote, pointing to the challenges she faced in dealing with the evidence before her, which included “forged” and “bogus” documents.

In what could only be an attempt to strike at the underpinnings of the husband’s status as a parent, the wife produced and relied upon a paternity test which stated the husband was not the biological father of the daughter. According to Justice McGee, the test was “a clear forgery” in which the “conclusion and probability of paternity fields had been altered, and the footnotes below the conclusions had been typed over.”

Buttressing the forged paternity test was a forged sperm donor agreement, allegedly signed by the husband, the wife and the wife’s first husband. When asked, the wife stated the document was prepared by her previous lawyer against the wife’s instructions. In a rare development, the wife’s former lawyer was called as a witness and testified that it was the wife who had provided the forged sperm donor agreement to her.

The wife produced an 11-page document which purported to be a summary of the evidence to be given by a witness she intended to call during the trial. While the wife chose not to call the witness, the husband was given the opportunity to so. According to the ruling, the witness confirmed she did not write the document and that “she had never met or spoken with (the wife) or any lawyer acting on (the wife’s) behalf, and that no one had ever contacted her about giving evidence in this proceeding on (the wife’s) behalf.”

Sadly, the wife’s apparent efforts to mislead the court did not stop there. The wife provided three emails that she asserted were sent by the husband to various professionals involved in the child’s life. The through-line of those emails was the husband’s wish for the child to be put up for adoption. In dismissing the emails as fakes, Justice McGee accepted the husband’s evidence that he did not create the account from which the emails were sent and he had never used it.

Interestingly, however, Justice McGee admitted the evidence for other purposes, noting that although the emails were inauthentic, they demonstrated the wife’s “extensive efforts to damage the husband’s character, particularly in the eyes of their daughter’s service providers and the Court.”

Perhaps the most egregious effort to mislead the court occurred when the wife called her first husband as a witness during the trial, which was conducted over Zoom. Justice McGee disqualified the witness “when it became clear that he was not who he was presented to be.”

According to Justice McGee, the witness “read answers to prepared questions and then in cross examination looked at his phone.” Continuing, Justice McGee noted that at the same time the witness was looking at his phone, the wife “was on her phone or outside the view of the camera.” When Justice McGee asked the wife to step into the frame of the camera, the witness “froze his screen and was no more.”

When asked about the case, Andrew Chris, the lawyer for the husband, said that virtual trials had led to increased concerns about witness coaching in general.

“With most trials currently taking place virtually due to the pandemic, it is extremely difficult to ensure a witness is not being coached through electronic means while giving their evidence over Zoom,” Chris said.

He also noted that the ease with which text and email messages can be altered puts an added onus on the legal profession.

“It is incumbent on lawyers to critically review our clients’ electronic evidence before putting it into a court record,” he said.

In Justice McGee’s closing remarks, she notes that in “a digital landscape, spoofing is the new ‘catch-me-if-you-can’ game of credibility.” In a plea to those directly or peripherally involved in matters before the family courts, Justice McGee urges “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.”

In the result, Justice McGee found that it was in the child’s “best interests to transfer her residence from Ontario, Canada to Oregon, U.S.A., where she will have a stable residence, extended family supports, medical care and good education.”

Of course, the story does not end there. In a companion decision released on Mar. 1, Justice McGee ordered the wife to pay costs to the husband in the amount of $438,188.77. In arriving at her decision to make such a substantial costs order against the wife, Justice McGee states: “There is no question that (the wife) acted in bad faith throughout this proceeding. She actively deceived (the husband), made false allegations, falsified documents and spoofed emails and social media. 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.”

This article originally appeared in the Financial Post.