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Creating more complexities with false accusations in custody disputes

In custody disputes, claims of abuse can make bad situations worse

Child abuse allegations aggravate custody disputes. Whether counsel represents the alleged abuser or the parent making the allegation, these cases are fraught with difficulty. The issue is a sensitive one, exposing intimate family details and raw emotion which are difficult to handle. The allegations often develop a life of their own, which makes these cases a challenge to resolve. The involvement of Children’s Aid, the police or the Office of the Children’s Lawyer further complicates things, as does the risk of multiple proceedings, including family law, child protection and/or criminal.

Actual abuse suffered by children is horrifying. Its effects are permanent. Allegations should be carefully investigated. Perpetrators deserve to lose custody of, and contact with, their children. False allegations, on the other hand, direct attention and resources away from the true cases of abuse, whose impact should not be minimized.

In 2003, a study of reported child abuse based on a sample of 10,756 cases of maltreatment reported to child welfare authorities across Canada determined that five per cent of maltreatment allegations were considered to be intentionally false. The rate more than doubles when parties are involved in an ongoing dispute. In the subsample of reports made in the course of a custody dispute, 14 per cent of the abuse allegations were intentionally false. Whatever the statistics, even one false allegation is too many.

Confirmation of abuse by a physical examination only occurs in a small percentage of cases. That is because a “normal” medical examination can be interpreted in a number of different ways. It could mean: (i) there was no abuse; (ii) the damage inflicted by the abuser has healed without a trace; or (iii) the type of abuse that took place has left no physical evidence.

Assessments by mental health professionals yield similarly equivocal results. Studies show that mental health professionals have “no greater ability to find the truth, to determine the credibility of persons giving testimony or to divine either the past or future from immediate clinical observation and facts.” Research also reveals that the overall accuracy of decisions by mental health professionals on unconfirmed allegations of child sexual abuse is quite low, with the average error rate being between 21 and 36 per cent.

What happens when an abuse allegation is made? The alleged abuser should retain criminal counsel, even if just on a consultative basis, as soon as an allegation has been made. Working together, criminal and family law counsel ensure the best possible outcome for the client.

Professionals have a legal obligation to report suspected abuse to a child protection agency (CAS). Once contacted, CAS must take steps to investigate the allegation and immediately ensure the child’s safety. CAS might seek to suspend visits if the alleged abuser is an access parent or seek removal and a “no contact order” if it is the custodial parent. CAS can go to court under child protection legislation. However, if family law proceedings are underway, CAS might rely on the parent alleging abuse to address the issue. In some cases, CAS has threatened to remove a child from the parent alleging abuse if that parent does not bring a family law application to suspend contact with the alleged abuser.

If the allegation is serious, CAS will contact police and conduct a joint investigation. Parents might also report to police. Charges will only be laid when there is strong evidence and the likelihood of a conviction. If charges are laid, they dominate the family law proceedings until resolved. The “beyond a reasonable doubt” standard in criminal cases is more rigorous than the civil “balance of probabilities.” A falsely accused abuser might be found not guilty of a criminal offence, but may still be found to have abused the child in the family law proceeding, with all of the negative fallout that entails.

Most courts err on the side of caution, and limit, supervise or suspend the alleged abuser’s parenting time, either on a temporary basis pending investigation or on a final basis at trial. CAS investigations can take months. A temporary order could cause the alleged abuser to lose contact with the child for an extended period. This lack of interaction invariably damages the parentchild relationship, whether or not there has been abuse. Not only is the parent-child bond irreparably harmed, but an artificial status quo is created by the order. Status quo pending trial is not meant to dictate a case’s final result. In reality, however, it makes the alleged abuser’s case for custody that much more difficult, even if it is later proven that no abuse ever occurred.

What of the parent who makes a false abuse allegation? If the allegation is deemed false, custody arrangements will be impacted. Intentionally false allegations are sometimes an indicator of emotional or mental illness. They also reveal an inability on the part of the accuser to co-parent. In extreme cases, the making of false allegations is considered harmful and labeled child abuse. Trial judges award custody to the wrongfully accused parent in some such cases. Theoretically, the falsely accusing parent could be prosecuted for perjury or obstruction of justice. The alleged abuser could pursue a civil action for malicious prosecution or slander, but the likelihood of success is slim. Normally, the falsely accused parent wants to get on with life and does not pursue legal remedies outside of the custody case. In truth, no order could repair either the damage inflicted to the parent-child bond or a parent’s ruined reputation.

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