In Ontario, courts have the power to grant orders regarding parenting time, communication between co-parents, and drop off locations. These elements can also be negotiated and recorded in a parenting agreement outside the court process, if the parties are able to negotiate productively.
Breakdowns in communication between co-parenting former spouses is not uncommon, but can exacerbate hostilities. This is never in the best interests of the child. In order to facilitate constructive and regular communication, there are now a variety of apps with which parents can text and store their discussions.
The recent case of Lenihan and Shankar is a perfect example of justice both for a loving parent and a helpless child. Justice McGee made sure that Baby A would be put in the best position possible to succeed. Her Honour recognized that her mother was toxic to the child and incapable of putting her ahead of her own mission to punish her ex-husband. From false allegations of physical and sexual abuse, to fake paternity tests, to creating a false string of text messages and fabricating evidence, this case had every example of how not to approach a trial for custody and access in Ontario. At a time during the trial when the mothers lies and web of deceit were brought to light, she fled to India and left the child behind without even saying goodbye. She was granted leave to continue the trial over zoom but this was the first bright spot for the father who finally were comforted that the court was seeing the mother for who she really was.
This case was about custody, access and mobility between the parents of young Baby A who found herself in the middle of one of the most high conflict and disturbing cases that we have come across in a long time. The parties met and married in Oregon, but while pregnant, the mother moved to Ontario where she stayed and gave birth to their daughter. As a result, the child became “ordinarily resident” in Ontario, such that Ontario had jurisdiction to hear the matter. The father made numerous attempts to have a relationship with his daughter, each attempt met by utter resistance and extreme measures to ensure that he would not be allowed to see his child. The mother was not above making false claims of sexual abuse towards the daughter at the hands of the father as well as false allegations to the police that the father had physically assaulted the mother. All of these claims were investigated and easily refuted as most of the time the father was not physically present at the location of the alleged incidents at the time of the alleged incident. There was no evidence whatsoever to suggest that he assaulted his daughter and the hospital concluded that the mother had made false allegations. This case went on over the span of three years. The father finally was provided an end to his three year long battle to see his daughter, when he was finally awarded sole custody and primary residency of Baby A.
Credibility is everything. In a case that was fraught with false testimony, forged documents and fake evidence, the court’s perception of the credibility of each parent was everything and in this case, the court was unable to believe almost anything the mother put forward.
At paragraphs 216 – 222, there is a very important overview of the test for admission of electronic evidence which can act as a guide to the public.
In a world where we know that electronic evidence can be fabricated, the courts turn to the reliability of the person producing the evidence. The court was able to see through the mother’s fabricated evidence time and time again throughout the trial, no matter what platform she used. Most importantly, her credibility was destroyed early on after being caught fabricating evidence and making false allegations that as her story continue to be internally inconsistent, the court became more and more skeptical of each piece of evidence produced.
The father remained consistent in his evidence and consistent in his actions and intentions and that allowed him to be a credible witness with an air of reality attached to every piece of evidence and testimony he put forward to the court. He showed a pattern of consistency whereas the mother was inconsistent in almost every aspect of the matter.
Justice McGee’s decision was written as a caution to the public that “As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulation and misuse of electronic evidence”. The major takeaway from this case can be found at the end of the decision where her Honour states “Any electronic medium can be spoofed: texts, emails, postings to social media, and even messaging through a reputable software program specifically designed to provide secure communications between sparring parents”. Her Honour made sure to point out that she was most troubled by the intention behind the mother when fabricating the evidence. It was done purely to gain litigation advantage and to ruin the father’s relationship with his child. As we all know, what is in the best interests of the child is at the forefront of minds of the court and it was beyond clear to the court in this case that the mother was incapable of putting her child first.
Justice McGee’s parting works for the public were “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”.
This decision will encourage the public to do right by the justice system and their children, but also act as a caution that the courts are more than aware of the technology that exists and people will not get away with fabricating evidence where the courts are on guard and attune to the tactics of litigant parents. Credibility is everything.
For more information, please call us at Feldstein Family Law Group P.C. or contact our firm online.