“Spoofing” or Falsified Electronic Evidence before the Court
Take it from the Respondent in Lenihan v Shankar 2021 ONSC 330, Ms. Indira Shankar – it just isn’t worth the risk to falsify electronic evidence in court. Especially when the real electronic record shows you to be alienating and vindictive.
The case is a fascinating study of how not to act in court proceedings. Mr. Lenihan and Ms. Shankar had a short marriage and had one child together, who was a toddler at the time of trial. Ms. Shankar had made it quite obvious that she would not facilitate a relationship between the father and the child before the child was even born. However, her alienating and inappropriate conduct escalated after the child was born.
Mr. Lenihan, with the support of his extended family, filed an Application with the court to secure parenting time with the child and access to information about the child. By the time the Trial was held, the issues were custody, access and mobility.
Prior to and during the trial, Ms. Shankar falsified the following documents:
- A letter from a fake principal, confirming the child’s enrollment in a particular school she was never enrolled in;
- A Skype log to claim that a call had taken place when it had not;
- A paternity test claiming that the Applicant was not the child’s biological daughter;
- A commissioned Will-Say statement from a false witness;
- A “Sperm Donor Agreement” purportedly signed by Ms. Shankar and Mr. Lenihan;
- Emails purporting to be from Mr. Lenihan to the child’s doctors and school complaining that he wanted to put the child up for adoption;
- False pornographic Instagram photos purported to be posted by Mr. Lenihan; and
- Falsified Our Family Wizard logs.
I would be lying if I said these were the most egregious acts of sabotage Ms. Shankar engaged in.
The Ontario Evidence Act R.S.O. 1990, c. E-23 has provisions very similar to the Alberta Evidence Act as it concerns the reliability of electronic records. In the absence of evidence the contrary, the integrity of the electronic records is presumed. The burden of proving the authenticity of an electronic document is on the party who wants the evidence admitted, but the threshold is fairly low.
Justice McGee noted that:
As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulations and misuse of electronic evidence…Spoofing first arose as a term in family law…to describe cell phone users hiding their identity and/or location for nefarious purposes…Any electronic medium can be spoofed: texts, emails, postings to social media and even messaging through a reputable electronic program specifically designed to provide secure communications between sparring parents. (paras. 247 through 254)
Justice McGee held that continuing joint custody was not an available option in the circumstances, given Ms. Shankar’s “prior acts of gatekeeping, withholding medical and educational information, misdirection, falsification of documents, lies and the filing of forged document [sic] with the Court have poisoned any possibility of joint consultation or joint decision-making.”
Thus, Ms. Shankar’s elaborate attempts to mislead the Court, sewer the reputation of Mr. Lenihan and alienate the child entirely from her father lead to her losing custody of the child. Mr. Lenihan was granted sole custody, was authorized to move back to Oregon with the child and Ms. Shankar was granted access only pursuant a detailed Order.
Ms. Shankar may have realized that this result was inevitable as, part-way through the Trial, she dropped the child off with Mr. Lenihan and boarded a flight to India where she remained through the end of the Trial with no concrete plans to return.
As Justice McGee stated in her closing thoughts:
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. (para 254)
She urged lawyers, family service providers and institutions to be on guard for falsified evidence and to assist the court in uncovering same.