By Tal Wolf
MacLean Law’s Surrey spousal assault family lawyers have zero tolerance for domestic violence and abuse. But MacLean Law’s Surrey spousal assault family lawyers also have zero tolerance for false claims of spousal assault or abuse made to gain improper advantage in a family law case, such as wrongfully bolstering possession of property, support or child custody and guardianship claims. Our Surrey domestic violence and Surrey spousal assault family lawyers can assist in these very difficult and emotional cases. Our experienced Surrey spousal assault family lawyers know family violence plays a key role in parenting time and parenting responsibility decisions and our spousal assault lawyers know contact to your children can be adversely affected by charges.
While men are often victims of spousal abuse, accusations by women against men comprise the vast majority of assault proceedings in the criminal legal system. Sometimes these accusations are false, and are made with ulterior motives. The MacLean Law Surrey spousal assault family lawyers and Vancouver domestic violence lawyers understand that a false accusation typically results in a powerful one-two punch that can leave the accused with a serious conviction in the criminal courts, and considerably disadvantaged if the accuser then files for divorce.
Alternatively, our Surrey spousal assault family lawyers know that the accusation may be made in a family law case first, resulting in a civil restraining order against physical or verbal contact with the wife or children. Then, any effort to interact with them directly may be claimed as a “violation” of the protective order. Police may be called to arrest the husband, and the prosecutor will have discretion to prosecute the matter as an indictable offense under s.127 of the Canada Criminal Code.
Criminal court and family court rules
Even after securing the dismissal of criminal charges with the help of our top Surrey spousal assault family lawyers and BC spousal abuse defence lawyers, our clients often have to confront an estranged spouse seeking full custody of the children with a no-contact protective order, exclusive use and possession of the family home, and immediate spousal support. Because the burden of proof is much lower in family court, and because the protection of children is paramount, even a recantation by the accuser in the criminal court (e.g., to save the husband’s job, or to prevent him from going to jail) may not reverse her advantage in the family matter. Sometimes, our clients are blindsided to discover that the initial cry of abuse was a tactical way to initiate the separation of a father from his kids, and from his family home.
The case of Saeedkhoo v. Binesh, 2014 BCSC 2405 (CanLII) is illustrative:
In his affidavit sworn October 21, 2014 to assist in setting aside the Protection Order, the respondent deposes that: The respondent came back to Vancouver on September 18, 2014 and wanted to force entry to my apartment while I was at work. My 65 year old mother, was home alone (with Rosa). My mother didn’t open the door. The respondent started pounding on the door and yelling that if she didn’t open the door he would kill her, kill my brother and he would also destroy me.
[11] As a result of the respondent’s attendance at the apartment, the police were called and the respondent was taken away and charged with uttering threats. The respondent spent the night in jail and was released the following day on bail conditions which prevent him from having any contact with the claimant or her mother.
. . . .
[13] On September 25, 2014, Master Keighley made the Protection Order prohibiting any direct or indirect contact or communication between the respondent and the claimant and the child, Rosa. It is this order which the respondent seeks to set aside.
[14] Throughout his affidavit material the respondent has denied making any threats to the claimant’s mother on September 18, 2014. The criminal courts will have to deal with those allegations, but this court has to determine whether or not it is appropriate to set aside the without notice Protection Order.
. . . .
[17] Also new to protection orders made pursuant to the FLA is the fact that protection orders are now registered with the police and breach of a protection order can now result in criminal charges under s. 127 of the Criminal Code of Canada.
[18] Bearing in mind this change, the court directed a question to counsel as to what the burden of proof should be on a complainant seeking a protection order. The question posed was whether the standard of proof should be the criminal burden of beyond a reasonable doubt, or the civil standard of proof on a balance of probabilities.
[19] After receiving counsel’s written submissions on this point, and having considered their detailed submissions, I am satisfied that the standard of proof on a complainant seeking a protection order is the civil burden only, or a balance of probabilities.
What to do if a false accusation of abuse has been made?
Hiring two law firms is unnecessary. MacLean Law handles both the family side and the criminal side of your family law case in one office, which is more economically efficient, and a far more effective way to achieve success with these difficult and tragic cases. The BC domestic abuse and spousal assault lawyers at MacLean Law will handle all of the legal consequences that may flow from a false accusation. On the criminal side, we can help prevent you from being hit with a conviction and sentence that can handicap your professional life for years, and that would hinder your ability to pass customs when traveling outside of Canada. On the family side, we will protect you from your spouse’s likely attempt to deny you custody and parenting time, to oust you from your home, and to force you to pay massive support.
We understand that false allegations of domestic assault sometimes are made out of anger or jealousy, or to gain the upper hand in family court. Sometimes what appears to the police to be a domestic battery was really an accident, or the accused having acted in self-defense during a mutual struggle. Don’t wait to be served with a protective order. Consult with a lawyer at MacLean law immediately. If you wait until after a judge has made a finding of abuse, the impact on your legal position can be devastating. Our spousal abuse lawyers often can show that a spouse perjured herself in bad faith; and when we do, she will lose credibility permanently, and flip the advantage in the family law claim to you.
Together with seeking legal advice, it is critical that you save all text messages, voicemails and e-mails from your spouse around the time of the alleged abuse. A spouse may make statements that are inconsistent with the accusation; may threaten to use the charge or a conviction for ulterior purposes; may attempt to secure a promise or agreement from you in exchange for dropping the claim; and may even outright admit to lying. Past threats to make false allegations against you also should be saved, and provided to your lawyer. We also advise our clients, if at all possible, to have a neutral third person (including a teacher, a police officer, a nanny, a neighbor, a spiritual advisor, a family friend) around when you need to have further interaction with the accusing spouse. There may be a temptation to be alone with your ex, in order to “work things out.” These efforts often result in further false accusations that only strengthen the initial charge.
Call the top BC spousal abuse lawyers at 1 877 602 9900 if you have been charged, or if you feel you may be charged with domestic violence.
