“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 most common internet definition of a spoofed email is when the email address in the “From” field is not that of the sender. It is easy to spoof an email, and not always so easy to detect. For sophisticated senders – such as actors who are “phishing” for information of commercial value – the origins of a spoofed email may never be detected.
Spoofing originates from the idea of a hoax or a parody, and in the early days of the internet, it was a legitimate tool for managing communications so that a user believed that an email came from one source, when it actually came from another.
Spoofing first arose as a term in family law (more commonly referred to in the U.S.A. as divorce law) to describe cell phone users hiding their identity and/or location for nefarious purposes. As a result of advances in mobile apps, websites, forwarding services and other technologies, callers are now able to change how their voice sounds, to evade a blocked number or to pretend to be a person or institution with whom their target was familiar. Targets can be tricked into disclosing sensitive information, harassed, stalked and frightened.
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.
What stood out in this case was the purpose of the spoofed communications. Instead of tricking or scaring the target, electronic communications were spoofed to deliberately damage the other parent’s credibility and to gain litigation advantage.
In R. v. C. B., the Ontario Court of Appeal foreshadowed the relevance of inauthentic electronic evidence. “[T]endered as bogus” is a critical catch that is not always apparent. A party’s lament that “it wasn’t me” may appear credible at one stage of the proceeding but may no longer be credible at a later stage. An email or text that on first reading appears authentic might later be found to be inauthentic when examined within the evidence as a whole.
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.
In a digital landscape, spoofing is the new “catch-me-if-you-can” game of credibility.
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.”
“Whether a solicitor-client relationship exists is a question of fact. A formal, written retainer agreement is neither necessary nor determinative. The issue is “whether a reasonable person in the position of a party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for a particular party: Trillium Motor World Ltd v General Motors of Canada Ltd, 2015 ONSC 3824 at para 413, citing Jeffers v Calico Compression Systems, 2002 ABQB 72 at para 8.
In determining whether a solicitor-client relationship exists, the following indicia are considered, although not all indicia need be present:
(a) the existence of a contract or retainer;
(b) a file opened by the lawyer;
(c) meetings between the lawyer and the party;
(d) correspondence between the lawyer and the party;
(e) a bill rendered by the lawyer to the party;
(f) a bill paid by the party;
(g) instructions given by the party to the lawyer;
(h) the lawyer acting on the instructions given;
(i) statements made by the lawyer that the lawyer is acting for the party;
(j) a reasonable expectation by the party about the lawyer’s role;
(k) legal advice given;
(l) any legal documents created for the party;
(m) the party’s vested interest in the outcome of the proceeding; and
(n) the belief of other parties to the litigation that the party was represented by the lawyer.
See Jeffers, supra at para 8; Trillium, supra at para 412; Rye & Partners v 1041977 Ontario Inc., [2002] OJ No. 4518 at paras. 13-14.”