Vancouver Sexual Abuse Child Custody Lawyers understand parents want to protect their children from harm, including harm from sexual predators. In some cases where sexual abuse has alleged to have occurred there is no doubt that it did. The police will be involved as well as the Ministry and the result is rarely in doubt. Click here for information if you have been sexually assaulted.
But in BC and Calgary child custody cases, allegations of sexual abuse cast an emotional cloud over already difficult court proceedings.
MacLean Law is BC’s and Western Canada’s largest family law firm and is been a repeat winner of Vancouver’s best family law firm award. We have 5 offices in BC and offices in Calgary and Winnipeg.
Sometimes Parents Jump To The Worst Conclusion and Conclude There Has Been Child Sexual Abuse
Vancouver Sexual Abuse Child Custody Lawyers know that, in child custody cases, parents lose trust in each other and often jump to the worst conclusion when they see a troubling behaviour by their child or see an injury.
How do family court judges discriminate between real, trumped up or unfortunate misperceptions of what caused an injury or a behaviour? How do they protect a child while trying to ensure a child has maximum contact with both of the child’s parents.
Sexual Abuse Allegations Can Add Gasoline To A High Conflict Custody Case Say Vancouver Sexual Abuse Child Custody Lawyers
However, our Vancouver Sexual Abuse Child Custody Lawyers know that most child custody and access dispute cases are factually unclear with one parent believing sexual abuse did occur and one parent adamantly denying that they ever touched their child inappropriately.
So, how does a court protect a child in a family law parenting time, custody and guardianship case but ensure exaggerated, unfounded or outright false allegations of sexual child abuse don’t block a child from maintaining and strengthening a quality bond with the falsely accuse or innocent parent?
And, If it can be proved someone made up false allegations what consequences should they face?
This week our Vancouver Sexual Abuse Child Custody Lawyers look at a recent case to see what the test should be to balance protecting a child against assessing the reality of the risk to the child of letting the accused parent spend quality time with their child.
Vancouver Sexual Abuse Child Custody Lawyers Supervised Access Test Explained
In this weeks child custody and guardianship case Mr Justice Skolrood laid out the law and applied the test to determine there was no risk to the child of any sexual abuse. M.H. v. A.M.,
[69] I will deal with the sexual abuse allegations at the outset because they are directly relevant to the central issues in this case which involve the guardianship and parenting of J.M.
[70] In Leveque v. Leveque (1983), 54 B.C.L.R. 164 [Leveque], Mr. Justice Macfarlane described the court’s approach to allegations of abuse in a family law dispute in these terms at 167:
… When the welfare of children is concerned, the question is not so much whether specific allegations of misconduct with a third party have been proven, but whether on the whole of the evidence there arises a real risk to the children if access is given without protection against that risk. The degree of risk can only be determined by carefully weighing all the evidence, and that must necessarily involve the credibility of the witnesses and the judge’s assessment of the character of the parties. …
[71] This approach was adopted by Mr. Justice Walker in J.P. v. B.G., 2012 BCSC 938, where he said at paras. 24-25:
[24] Custody and access rights are not dependent on whether any of the competing allegations of sexual and physical abuse and mental incapacity are proven. In E.J.L. v. B.J.L. (1983), 54 B.C.L.R. 164, the Court of Appeal said, at 167, that the question is:
… whether on the whole of the evidence there arises a real risk to the children if access is given without protection against that risk. The degree of risk can only be determined by carefully weighing all the evidence, and that must necessarily involve the credibility of the witnesses and the judge’s assessment of the character of the parties.
[25] In G.E.C. v. M.B.A.C., [1993] B.C.J. No. 1393, Newbury, J. (as she then was) said, at para. 93, that in cases involving allegations of sexual abuse, the case law is “clear” that the “Court must focus on whether there is any ‘real risk’ to the children, rather than on whether any particular allegations have been proven”.
[72] More recently, in N.D.T. v. T.F.T., 2016 BCSC 134 at para. 103, Mr. Justice Saunders again adopted the approach set out in Leveque and related it to the best interests of the child principle found in s. 37(4) of the FLA:
[103] It has long been recognized, however, that in cases dealing with the well-being of children a court is not obliged to reach specific factual conclusions as to what has transpired while children have been in their parents’ care, in making an order respecting parenting arrangements: see Leveque v. Leveque, (1983), 54 BCLR 164 (BCCA) at para. 13. This principle is recognized implicitly in s.37(4) of the Family Law Act, which provides only that the best interests of a child be advanced through an order that protects a child’s physical, psychological and emotional safety, security and well-being to the greatest possible extent. This wording contemplates that evidence in family cases is often of a type that may be only suggestive of the truth, and that resists specific conclusions being drawn. The best interests of a child are promoted and protected by making orders that contemplate real and substantial risks to the safety, security and well-being, in respect of both the possibility of a risk apprehended by the court actually existing or becoming manifest, and the risk of potential harm to a child as a result, while at the same time balancing the possibility of a child’s interests being harmed by any order that might be too broad.
[73] As can be seen from these cases, it is not necessary for the court to come to a definitive conclusion about whether the alleged abuse did or did not occur, and in many cases, given the nature of the evidence, it may not be possible to do so. Rather, the court must assess whether there is a real risk of harm to a child if unsupervised contact or parenting time is ordered. The test, as it is in all matters of guardianship and parenting time, is the best interests of the child.
[74] Based on all of the evidence, I find that there is no real risk of harm if the claimant spends unsupervised time with J.M. While certain behaviours and statements of J.M. are clearly troubling, there is nothing in the evidence to support a finding that the source or cause of that behaviour is anything said or done by the claimant and further, nothing that would give rise to any risk of harm to J.M. from time spent with the claimant.
[75] The claimant was asked directly by his counsel about J.M.’s behaviour and statements and whether he had engaged in any sexual conduct with her. He answered all of the questions put to him in a direct and forthright manner and he adamantly denied any misconduct. His evidence was in no way undermined in cross-examination. Indeed, he was not even cross-examined on his denials nor was it put to him that he was being untruthful.
Call our experienced Vancouver Sexual Abuse Child Custody Lawyers immediately if you are concerned about sexual abuse occurring in your family law case, or if you have been falsely accused of it. Getting immediate medical and psychological assessment is crucial to getting to the bottom of the concern.
