Witness obscures, conceals text messages during Zoom trial, held to have fabricated evidence

The leap to doing hearings and even trials via online platforms such as Zoom has been a significant one, but many matters have proceeded in this way throughout Canada and generally seem to produce solid and uncontroversial results. This was not the case in a recently reported family law matters, which demonstrated some of the problems that can arise when doing “virtual” trials while at the same time showing that witness credibility issues can be dealt with nonetheless in that setting. In Oremush v. Hickey, Justice Audet of the Ontario Superior Court of Justice presided over an application by a father to vary custody conditions regarding his child, which had been imposed in a previous court decision. The three main witnesses in the trial, which proceeded on Zoom, were the father, the child’s paternal grandmother, and the mother; the trial judge held that none of them “had much credibility.”

A week before the trial, the mother had reviewed a series of text messages between the father and mother that had been disclosed by the father, and proceeded to upload “her own version” of the text exchange. That version included a number of very damaging admissions made by the father as to the parents’ comparative parenting ability, his motivations, etc. The father vehemently denied that he had sent the damaging texts and stated that they had been fabricated by the mother. The mother in turn denied this, stating that she had taken screenshots of the texts directly and emailed them directly to her lawyer. “Therefore,” Justice Audet observed, “the authenticity of the mother’s text messages became a key issue in this trial.”

During cross-examination of the mother by the father’s counsel she was asked to show the court the text messages. She first denied that she still had them and stated that she had deleted them some time ago, and continued to refuse to admit she still had them. Her testimony became increasingly suspect:

[45] … When asked to show her cell phone to the camera and scroll down slowly so we could see how far the text message exchanges between her and the father went, it became obvious that the mother was keeping her finger on the screen of her phone to make sure it could not scroll down past a certain date. 

[46] It took a lot of direction (including eventually by myself) for the mother to finally remove her finger from the screen and to stop interfering with her phone to allow everyone to see the string of messages. It became clear that she did, in fact, still have all of her text messages going back years.

[47] The mother then became very defensive and agitated. She started to question the purpose for which she was required to do this, became belligerent with opposing counsel, and quite flustered by the process. When directed to go to a specific date in July 2020, the date at which one of the very damaging messages had purportedly been sent to her by the father, she started to give all sorts of explanation as to why it “might” not be there anymore (while searching for the particular date on her phone), including that she had also exchanged many text messages with the father using her iPad (which, conveniently, was now in the possession of her parents in Nova Scotia).

Things went from bad to worse when the mother insisted on a break to feed her child, at which point the court granted a request that her camera be kept pointed at the phone during the entirety of the break, during which time the father’s counsel’s associate was to pick up the phone. When the trial resumed it was noted that the mother’s camera had been disconnected for 4-5 minutes during the break, and that when the phone was examined at the father’s counsel’s office, “all text messages between the parties that the phone ever contained had been entirely wiped out.” The judge held that the mother’s evidence (like that of the father and grandmother) was completely lacking credibility, in part based on the following:

[53] From the above, I come to the following factual findings:

• The mother’s version of the text messages exchanged between her and the father is not authentic. Those messages were fabricated by the mother or someone else at her behest;
  
  
• The mother lied to the court when counsel was trying to get her to access the text messages on her phone. She deliberately tried to conceal the history of messages and, when she failed, she lied by saying that she could not access them before;
  
  
• During the lunch break, the mother intentionally disconnected from the Zoom call just long enough for her to delete all the text exchanges between her and the father that her cell phone contained. I find that she (or someone for her) erased all those messages, in clear breach of my specific order.