ALLEGATIONS OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION: A DISCUSSION PAPER
 Toronto Sun, April 12, 1998.
 The Spectator (Hamilton), March 9, 1998.
 The Spectator (Hamilton), February 15, 1997.
 The Spectator (Hamilton), February 15, 1997.
 The Edmonton Journal, February 3, 1997.
 The Calgary Herald, November 29, 1996.
 The Edmonton Journal, October 22, 1996.
-  In some family law cases where there are abuse concerns, the court will order that access should be supervised by a child protection agency (see e.g., Beckett v. Beckett,  O.J. 2185 (Gen. Div.) Kent J.). Though agencies are sometimes willing to do this, they may lack resources and there is doubt as to whether the agency can be required to supervise access unless there is a child protection application (see Levesque v. Levesque (1983), 54 B.C.L.R. 164 (B.C.C.A.)), or legislation requires the agency to comply with judicial supervision orders.
-  In some jurisdictions, the rules of court permit one judge to deal with the family law proceeding and a child protection application at the same time, reducing the expense for all involved. However, the accused parent may consider it unfair to have to litigate against both the other parent and a state agency in the same proceeding.
 See e.g., R. v. J.C.P.,  O.J. 3883 (Gen. Div.); R .v. B.L.,  O.J. 2522 (Gen. Div.).
-  If the civil case comes to trial before the criminal case, it is possible for the accused to seek a stay of the civil trial, but judges are reluctant to grant a stay, especially if this would delay the making of a decision about the best interests of the child: see e.g., Forbes v. Througlow (1993), 23 C.P.C. (3d) 107 (Ont. Gen. Div.).
-  See e.g., Todd White, "Spousal Abuse Issues and Their Impact on the Resolution of the Family Law Case" and H. Niman & J. Pirie, "How to Deal with Allegations of Spousal Assault in a Family Law Case" in Canadian Bar Association - Ontario, Family Law Institute, (Toronto, January 1999).
-  The Canadian Charter of Rights and Freedoms, section 13, creates a right against self incrimination, so prior affidavits or testimony of an accused cannot be used if the accused does not testify. However, if the accused does testify in the criminal trial, the prior statements from the family law proceedings can be used to impeach his credibility; see e.g., R. v. B.(W.D.) (1987), 38 C.C.C.(3d) 12 (Sask. C.A.); and R. v. Kuldip (1991), 61 C.C.C. (3d) 385 (S.C.C.). Counsel in the civil case may try to get an order for the sealing of the civil trial record until after the criminal case is over to prevent any use of the material in the civil case; see e.g., Forbes v. Througlow (1993), 23 C.P.C. (3d) 107 (Ont. Gen. Div.) where such an order was made.
-  In ordinary civil cases, judges have held that since the parties to a civil case are not the same as those in a criminal case, the criminal conviction is
only prima facie evidence of guilt and the accused may in theory attempt to re-litigate the issue in a later civil trial; Taylor Estate v. Baribeau (1985), 51 O.R.(2d) 541 (Div. Ct.). See, however, D.E. v. O.L.,  O.J. 3136 (Prov Div) which applied the doctrine of "issue estoppel" to prevent the accused from re-litigating the issue of abuse after a criminal conviction at a later interim access hearing and terminated
unsupervised access. See also Demeter v. British Pacific Life Insurance (1984), 13 D.L.R. (4th) 318 (Ont. C.A.) which held that in some circumstances it may be an
"abuse of process"to allow a person convicted of an offence in a criminal trial to re-litigate the issue of guilt in a later civil case, particularly if the primary purpose of the civil case is a collateral attack on the criminal conviction.
 S.S. v. P.S ,  O.J. 995 (Prov. Ct.), Main J.
 S.S. v. P.S ,  O.J. 995 (Prov. Ct.), Main J.
-  M.R.P. v. P.P. (1989), 19 R.F.L. (3d) 437 (N.S.Cty Ct.), new trial ordered when trial judge allowed unsupervised access to a father convicted of sexually abusing the children five years earlier and trial judge satisfied that father was rehabilitated and there was no risk to safety of children; the trial judge should have not only considered the issue of risk of further abuse but should have also required evidence that access was in the best interests of the children.
-  Stuart v. Stuart (1985), 32 A.C.W.S. (2d) 53 (Ont.S.C.) per Cork M. In Bartesko v. Bartesko (1990), 31 R.F.L.
(3d) 213 (B.C.C.A.), McEachern C.J.B.C. suggested that the fact that no charges were laid is
"less than conclusive"but it
"was at least a matter that the trial judge was entitled to comment upon"in deciding that the mother's sexual abuse allegations were
"groundless"and awarding custody to the father.
-  The Children's Act R.S.Nfld. 1990 c. C-8, section 31(3) specifies that the court shall consider the person's history of "violence" towards a spouse or any child when making a determination about whether that person shall have custody or access to a child.
-  See e.g., S.S. v. A.S.,  W.D.F.L. 897 (Ont.S.C.) per Cork M.; Zarb, "Allegations of Childhood Sexual Abuse in Custody and Access Disputes: What Care is in the Best Interests of the Child?" (1994), 12 Can J.Fam.L. 91, at 100; and J. Wilson, "The Ripple Effect of the Sexual Abuse Allegation and Representation of the Protecting Parent" (1986), 1 Can. Fam. L.Q. 138, at 160.
 For examples of cases where the judge concluded at the interim stage that the allegation of sexual abuse was unfounded and allowed unsupervised access, see Flanigan v. Murphy (1985), 31 A.C.W.S. (2d) 448 (Ont. S.C.), per Cork M.; and B.J.A.B. v. K.J.R. (1996), 21 R.F.L. (4th) 401 (Ont. Gen. Div.) per Aston J.
 See e.g., G. (D.) v. Z. (G.D.)(1997), 30 R.F.L.(4th) 458 (B.C.S.C.) per Power M.
 See e.g., B.M. v. N.G.W.,  O.J. 297, 36 R.F.L. (4th) 249 (Ont. Gen. Div.); see also comments of L'Heureux-Dubé J. in Young v. Young (1993), 49 R.F.L. (3d) 117 (S.C.C.).
 See e.g., R.M.C. v. J.R.C. (1995), 12 R.F.L. (4th) 440 (B.C.S.C.).
-  See e.g., M.T. v. J.T.,  O.J. 3379 (Prov. Div.). per Hatton Prov. J.; H. v. J. (1991), 34 R.F.L. (3d) 361 (Sask. Q.B.) Gagne J.; and R.A.G. v. R.J.R.,  O.J. 1415 (Ont. Fam. Ct.) Robertson J.
-  See J.A.M. v. J.J.B.,  B.C.J. 1395 (Prov. Ct.) where Auxier J. was
"unable to reach any definite conclusions"about the sexual abuse allegations, but felt that there was a
"a substantial degree of risk that the child must be protected against"and terminated access. See also E.S. v. D.M., (1996), 143 Nfld. & P.E.I.R. 192 (Nfld. U.F.C.) where Puddester J. held that there was a
"substantial possibility that it [sexual abuse] may have occurred"and ordered supervised access.
 See e.g., M. (P.A.) v. M.(A.P.),  B.C.J. 3020 (S.C.) per Errico J.
-  See e.g., F.(E.) v. S.(J.S.)(1995), 17 R.F.L.(4th) 283(Alta C.A.).; and Zarb, "Allegations of Childhood Sexual Abuse in Custody and Access Disputes: What Care is in the Best Interests of the Child" (1994), 12 Can. J.Fam. L.91, 108-113.
 C.H.M. v. K.W.,  O.J. 744 (Prov. Ct. Fam. Div.).
 (1995), 18 R.F.L. (4th) 21 (N.S.C.A.).
 R. v. Sansregret,  1 S.C.R. 570.
  O.J. 3420 (Prov. Ct.) Magda Prov. J.
-  R. v. L.M.L.,  O.J. 856 (Prov. Ct.); (female teenager pled guilty to making a false allegation against an elderly man and received a probationary sentence); R. v. J.J. (1988), 43 C.R. (3d) 257 (Ont. C.A.) (female teenager made false report of sexual abuse against her brother; it would appear from the judgement that she later admitted that the statement was false).
-  L.G. v. C.M.P.,  B.C.J. 2052 (S.C.) illustrates some of the complexities in this area. When she was a teenaged girl, L.G. disclosed that her father was engaged in an incestuous relationship with her. A short time later she recanted, and was charged with and convicted of obstruction of justice, and placed on probation. She later had a child with the father. Despite the conviction for mischief, her original reported abuse was undoubtedly true; it was the recantation that was false. All of this came to light much later when the woman began to accuse her mother and stepfather of sexually abusing the child who was born of the incestuous relationship with her father. In a custody trial the judge awarded custody to the grandmother, finding the sexual abuse allegations against the grandmother to be without foundation, but suggesting that they were made as a result of the "mental instability" of the mother, which was a result of the incestuous relationship with her father.
 See e.g., L.B. v. R.D.,  O.J. 858 (Prov. Ct.), varied  O.J. 2900 (Gen Div.).
 This case is referred to in the Report of the Special Joint Committee on Child Custody and Access, For the Sake of the Children (1998), p 85.
 D.B. v. C.A.S. of Durham Region,  O.J. 643, varied (1996) 136 D.L.R. (4th) 297 (Ont. C.A.).
-  In England, courts have ruled that as a matter of public policy such suits against a child protection agency should not be permitted. M. v. Newham Borough Council,  2 W.L.R. 554 (Eng. C.A.).
-  Some cases are still ongoing; see D.W. v. D.W., O.J. 2927 (Gen. Div.); and Y.C. v. Children's Aid Society of Metro
Toronto (1998), 37 R.F.L. (4th) 381 (Ont. Gen. Div.). In 1991 in A.G. v. Supt. of Fam. & Child Service for B.C. (1991), 21 R.F.L. (3d) 425, 61 D.L.R. (4th) 136 (B.C.C.A.) the British Columbia Court of Appeal barred a
civil suit against the provincial child protection authorities and its social workers brought by parents wrongfully alleged to have sexually abused their children. While the Court found that the social workers made "errors of
judgment," for example by not communicating with the family doctor and school counsellor at the time the children were apprehended and failing to interview the parents and children thoroughly, the Court accepted that the workers were
"good faith."The Court accordingly relied on British Columbia legislation to dismiss the parents' action, ruling that
"mere negligence"was not sufficient basis for such a law suit.
-  In D.B. v. C.A.S. of Durham Region, discussed above, both the agency and its workers were found civilly liable. There are no reported civil cases that distinguish between the liability of the agency and its employees.
 (1990), 27 R.F.L. (3d) 366 (B.C.S.C.) Huddart J.
 (1996), 150 Sask. R. 1, 31 C.C.L.T. (2d) 263, 25 R.F.L. (4th) 51 (Sask. Q.B.), varied with respect to costs (1997), 153 Sask. R. 311 (Q.B.).
-  In Wood v. Kennedy (1998), 165 D.L.R.(4th) 542 (Ont. Gen. Div.) a 13-year-old girl alleged that her uncle sexually assaulted her on several occasions during family visits. The uncle was criminally charged, though the charges were dropped the day of trial. The uncle sued the girl and her parents. The civil suit against the parents was dismissed, as they honestly believed and understandably supported their daughter. The girl, however, was found to have deliberately lied about the abuse (apparently because of emotional problems related to her parents' separation and her father's alcoholism). She was found liable for malicious prosecution, with damages to the uncle for $25,000 for his legal fees in the criminal case, $20,000 in general damages, $5,000 to the uncle's wife, and $1,000 to each of the uncle's three children. This judgment may be effectively impossible to enforce against the teenaged girl.
-  Borden & Elliot v. Neuberger,  O.J. 1797, affd.  O.J. 1797(C.A.). See also  O.J. 1624 (Div. Ct.),  O.J. 753,  O.J. 3612,  O.J. 4746.
 A.H.T v. E.P.,  A.J. 739 (Q.B.).
 The analysis excluded 40 cases because they fell outside of the agency's jurisdiction or the file could not be located.
 Controlling for form of investigated maltreatment, given that the police are primarily involved in abuse investigations.
-  Portions of that study are discussed at Bala & Schuman,
"Allegations of Sexual Abuse When Parents Have Separated"(2000), 17 Can. F.L.Q. 191-243.
  B.C.J. 133 (S.C.); see also M. (P.A.) v. M.(A.P.),  B.C.J. 3020 (S.C.) per Errico J.
-  See discussion in Section 4.3. In the case law review, judges concluded in 45 out of 150 reported cases, that where abuse not proven, there was deliberate fabrication.
 Plesh v. Plesh (1992), 41 R.F.L. (3d) 102(Man Q.B.).
 H.B.M. v. J.E.B.  B.C.J. No. 1181 (S.C) per Allan L.J.S.C.
 M.K. v. P.M., O.J. 3212 (Gen. Div.).
-  See e.g., T.(C.L.) v. P.(E.) (1999), 45 R.F.L.(4th) 91 (Alta. C.A.); and Scott v. Scott,  O.J. 607 (S.C.) where Fitzgerald J. recommended that the Director of Legal Aid should exercise his discretion to assist a father falsely accused of sexual abuse with his legal fees, since the mother was indigent and her lawyer had been paid by legal aid. Although the father has a substantial income he was heavily in debt as a result of the litigation. The judge commented: "The protracted litigation was made possible by legal aid financing [the mother's legal expenses] and I feel it only fair that legal aid bear the consequences [and assist the father]."
-  See Green, "Factors Contributing to False Allegations of Child Sexual Abuse in Child Custody Disputes" (1991), Child & Youth Services, 15(2), 177-189.
-   B.C.J. 1810 (S.C.) per Newbury J. See also D.R.P. v. D.J.P.,  B.C.J. 2024 (S.C.) where a girl made allegations of physical, emotional and later sexual abuse against her mother. After the initial allegations were made, child welfare authorities transferred care of the child to the father. The family law judge ultimately found that the allegations of physical and sexual abuse were without substance, but that the 11-year-old girl had a troubled relationship with the mother; the father was awarded custody and the mother was given access one weekend per month.
-  See discussion in Section 2.1.2. See e.g., D.W.H. v. D.I.S.,  O.J. 3074 (Gen. Div.); M. (S.A.J.) v. M. (D.D.)(1998), 40 R.F.L. (4th) 95 (Man. Q.B.).
-   O.J. 806 (Prov. Div.) per Pedlar J. See also R.S.S. v.S.N.W.,  O.J. 1572 (Prov. Div), per Zuker Prov. J.; V.A.L. v. J.F.L.,  O.J. 642 (Gen Div) per Pardu J; Metzner v. Metzner (1997), 28 R.F.L.(4th) 166 (B.C.C.A.); A.L.J.R. v. H.C.G.R., O.J. 4226 (Prov. Div.) per Fisher Prov. J.; Scott v. Scott,  O.J. 607; S.W.C. v. T.L.C., [1996} O.J. 4577 (Gen. Div.) per Fleury J.; and Bartesko v. Bartesko (1990), 31 R.F.L.(3d) 213 (B.C.C.A.).
  O.J. 3198 (Gen. Div.) per Lack J.
-  See e.g., Jeanson v. Gonzalez,  O.J. 3269 (Gen. Div.) MacLeod J. terminated access to a mother who repeatedly made false allegations of sexual abuse against the two fathers of her two daughters, each of whom had custody. In J.K.L. v. J.S.H., O.J. 1305 and A.H.T v. E.P.,  A.J. 739 (Alta Q.B.) unfounded allegations of abuse were made against the custodial mother and the accusing parties (the father and grandparents respectively) lost access rights.
-  See Fahn, "Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter" (1991), 25 F.L.Q. 193, at 213-16; and Bross, "Assumptions About Child Sexual Abuse Allegations at or About the Time of Divorce" (1992), 1(2) Journal of Child Sexual Abuse 115.
-  C.A.S. Waterloo v. B.D.  O.J. 2398 (Prov. Ct.) was a child protection case involving allegations of sexual abuse against a
father who was separated from the mother of their two girls. Robson Prov. J. was ultimately not satisfied, on the civil standard of proof, that abuse had occurred, but he was sufficiently concerned to take steps to try to protect against
the possibility of future abuse. He concluded that there was a
"substantial risk of sexual abuse occurring"during visits, and ordered that the father should take a parenting course, as well as a course on the effects of child abuse on children as a condition of his visitation with the children. The allegations arose following a mother's report of complaints by her six-year-old daughter about the father's touching of the girl's vulva while bathing her during an access visit. The mother initially reported her concerns to a doctor, and then to the Children's Aid Society and the police. The decision in C.A.S. Waterloo v. B.D. reflects a judicial effort to deal with uncertainty about an abuse allegation without unduly jeopardizing the welfare of children. In part the decision also may reflect a response to what the judge referred to as
"inexcusable"record keeping and
"bias"by the Children's Aid Society worker responsible for investigating the allegations. The judgment emphasized the need for investigators in these cases to maintain the reality and appearance of objectivity and fairness.
 See e.g., N.(D.) v. K.(B.) (1999), 48 R.F.L. (4th) 400 (Ont. S.C.).
-  In one infamous American case the mother, Elizabeth Morgan, was jailed for contempt of court for refusing to allow an abusive father to visit their daughter; only later was it conclusively established that the judge was wrong to conclude that the father was not sexually abusing his daughter during access visits. A network of American feminists-the "Underground Railroad"-helps women and children to "disappear"; see Fahn, "Allegations of Child Sexual Abuse in Custody Disputes: Getting to the Truth of the Matter" (1991), 25 F.L.Q. 193, at 194-197; and Haralambie, A.M., Child Sexual Abuse in Civil Cases: A Guide to Custody and Tort Actions. (1991), Chicago, IL: American Bar Association.
 See e.g., H. v. J (1991), 34 R.F.L. (3d) 361(Sask. Q.B.) and Z.M. v. S.M.,  O.J. 1423 (Gen. Div.).
  2 S.C.R. 531, 59 C.C.C. (3d) 92.
-  J.A.G. v. R.J.R.  O.J. 1415 (Fam. Ct.), and E.S. v. D.M. (1996), 143 Nfld. & P.E.I.R. 192 (Nfld. U.F.C.).
 See e.g., G.E.C v. M.B.A.C.,  B.C.J. 1810 (S.C.) Newbury J., Endnote 1.
 M. (L.E.) v. M. (P.E.) (1996), 22 R.F.L. (4th) 83 (Alta. C.A.).
-  In E.H. v. T.G. (1995), 18 R.F.L.(4th) 21(N.S.C.A.) the appeal court discounted testimony of a child who testified at trial she may never have
been abused and previous allegations were
-  See e.g., Horner & Guyer, "Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Sexual Abuse Allegations Have Been Made" (1991-92), 25 Fam L.Q. 217 -252; 381-409 & 26 Fam. L.Q. 141-170; Horner, Guyer & Kalter, "Clinical Expertise and the Assessment of Child Sexual Abuse" (1993), 32:5 J. Am Acad. Child & Adol. Psychiatry 925- 931. See also Penfold, "Questionable Beliefs about Child Sexual Abuse Allegations during Custody Disputes" (1997), 14 Can J. Fam.L.11, at 26-29; Fisher & Whiting, "How Valid Are Child Sexual Abuse Validations?," in S.J. Ceci and H. Hembrooke (eds.), Expert Witnesses in Child Abuse Cases (Washington, D.C.: American Psychological Association, 1998); McGleughlin, Meyer & Baker, "Assessing Sexual Abuse Allegations in Divorce, Custody and Visitation Disputes," in R. Gelatzer-Levy & L. Kraus (Eds.) The Scientific Basis of Child Custody Decisions (New York, John Wiley 1999).
-  See e.g., L.T.K. v. M.J.K.,  O.J. 1381 (Ont. Prov. Div.) where Pickett Prov. J. rejected the opinions of the staff at a hospital child
abuse clinic that a two-and-a-half year old child had been sexually abused by her father during an access visit. A physical examination by the physicians did not produce evidence of abuse (though that is not unusual even if the child has
been abused), and the only source of the "disclosure" was through the mother. The assessors never interviewed the father and the judge characterized the staff as
"anything but fair and open-minded."They
"grossly overinterpreted innocent behaviour"such as how the child played with anatomically correct dolls.
 See discussion in Section 3.2.1 about D.B. v. C.A.S. of Durham Region,  O.J. 643, varied (1996) 136 D.L.R. (4th) 297 (Ont. C.A.).
 See e.g., M.K. v. P.M.,  O.J. 3212 (Gen. Div.).
 (1993), 47 R.F.L. (3d) 378 (Ont. Ct. J. - Prov. Div.), per Webster Prov. J.
-   O.J. 3379 (Prov. Div) per Hatton Prov. J.. For other cases critical of the role of assessors or child protection investigators; see e.g., M.K. v. P.M.,  O.J. 3212 (Gen. Div.); Brigante v. Brigante (1991), 32 R.F.L.(3d) 299 (Ont. U.F.C.) per Beckett J.; and D.B. v. C.A.S. of Durham Region,  O.J. 643, varied (1996) 136 D.L.R. (4th) 297 (Ont. C.A.).
 See e.g., Law Society of British Columbia Gender Bias Committee, Gender Equality in the Justice System (1992), Vol. II: 5-49.
 Flanigan v. Murphy (1985), 31 A.C.W.S. (2d) 448 (Ont. S.C.), per Cork, M.
-  See e.g., Donna Laframboise, "One-stop divorce shops," National Post, Nov. 21, 1998. She reports on a claim by Ms. Louise Malenfant that over a four year period she had been advocate for 62 individuals in Manitoba who had been falsely accused of child sexual abuse in divorce proceedings, and that in one-third of those cases women's shelters were involved. Ms. Malenfant claimed that shelter workers gave children sessions "educating" them about sexual abuse, and then followed this up with suggestive questioning that resulted in false allegations.
  O.J. 3212 (Gen. Div).
 Smith v. Smith (1997), 32 R.F.L. (4th) 361 (Sask. Q.B.).
  O.J. 27 (Gen. Div.); see also B.A. v. D.M.A.,  O.J. 352 (Gen. Div.) per Perkins J.
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