Listen to Charles Fair, Calgary Divorce and Family Lawyer, discuss how false accusations of a criminal nature can impact your family life when going through a divorce. This webinar was hosted by the Canadian Centre for Men and Families.
Watch: False Accusations and the Impact on your Family Life
Vanessa of the Canadian Centre for Men and Families: Just before we begin, do keep in mind, the information given in this session should not be construed as legal advice, and is no substitute for hiring a lawyer. With that in mind, please keep your questions general. Charles is not in a position to answer detailed questions about your specific situation in this forum.
That being said, all of you will be invited at the end to book a free consultation with Charles if you want to investigate whether you might be interested in hiring him. This is an important topic: false Accusations, and their Impact on your Family Life. And we're very glad to be offering it tonight.
Thank you Charles, for being here. And I will hand the conch over to you to tell our attendees a little about yourself.
Charles: Great. Thank you, Vanessa. I'm very excited to be here. I have been a lawyer doing mostly litigation for almost 30 years now. I have a social anthropology degree, that's my background.
So I got into law because I really wanted to deal with a lot of conflict that was in my life and my family background, including criminal conduct, and family members, and that sort of thing.
And, but I also, from my anthropology degree, I recognized that we are all embedded in a system of relationships, and that's important. And it's important to understand those relationships as they affect the legal resolutions that are possible. And, you know, I've been dealing with false allegations in multiple areas of law going right back to my first case was an estate litigation file to, two sisters. And, one of whom was a medical doctor who was unfortunately quite mentally disturbed. And there was accusations of criminal conduct that were eventually dismissed. That sister ended up being restrained from going into a major hospital in Toronto.
So this has been around a long time. And so a number of years ago, I started to realize that the criminal stuff was showing up in family law matters and that clients were not always getting, in my view, good service from their criminal lawyers. Because what would look like a good criminal defense strategy would sometimes have some very adverse effects on the family law side. And, including, you know, where I've acted for people making the allegations of domestic violence, and them not being dealt with accordingly, and having great success in really restricting the other parties rights.
So I am very cognizant of the issues from both sides of the fence, so to speak. I represent women and men. I've represented men who have been victims of abuse, and women, and I have been dealing with cases involving false accusations, and, both involving the criminal only, and also in the criminal and family situation.
So, that being said, today's focus then is on, let me just make sure this is going here.
There we go. That's my picture. I'm not sure whether you can see me. Today's focus is on the impact of domestic violence allegations on family court decisions. And a few other things to note is that it's, we're going to go over how these allegations of domestic violence can be made, and how it's easier than ever to make false allegations and get some leverage in the family law case.
And then I'll deal with some strategies and resources, and I've got some ideas. If there are lawyers on the call, I want to stress that every case is different and I'm really just highlighting a couple of things that are here. There are strategies that I'm aware of and I may just not have time to cover them, this is a very large topic.
So, first off, I want to say that domestic, accusations of domestic violence are taken seriously, and that's why false allegations can give rise to trouble. So when the family court has to make decisions regarding children, concerns for their safety and security can trump the rights of a parent being accused.
And so these decisions can regard where the children live, the parenting arrangements, contact time, whether parenting is going to be supervised or not. And the -
- it's in the best interest of the child. But accusations of domestic violence can also impact decisions regarding possession of the family home, even if it's rented, they can sometimes affect other issues such as relocation, and mobility rights, financial support, and of course restraining orders, which are the civil equivalent of criminal release conditions.
When the criminal justice system has to make decisions regarding interim release or bail conditions, or early case resolution options, or even sentencing, then, to the accusations of domestic violence are taken seriously. And, so in term release conditions are when, the normal rule is that when somebody is charged with an offense, then the rule is that they get released, unless there's some reason why they should be kept in custody, pending the resolution of their case.
And that's because, when you are charged with a crime, you are innocent until proven guilty. And that presumption of innocence is supposed to apply right from the very beginning. But, if there is a strong indication that you are going to be found guilty, and that there's a risk that you're going to re-offend, or there's going to be a risk to the public, then what, the court will set release conditions, and that's under a bail hearing.
That decision is often made by the police when they first do an arrest, and that, if there is concerns that the, that the person who is being accused is going to go and re-offend and cause harm to their family member, then obviously that's going to be taken into account.
It also, I think, affects early case resolution options. That's a process whereby, you know, we have, we talk about it, people know it as plea bargains and that sort of thing. The crowns are, the crown prosecutors are also having to deal with a number of interested parties in this. And there are victim's rights that need to be taken into account, et cetera, et cetera.
So, you know, accusations can have a lasting impact on your life, even if they're eventually proved false. Obviously they can affect your employment or volunteer positions if you have a conviction, and possibly even if there's pending charges, then that can affect your employment.
I had one client who in the course of, again, it was a family law client, with criminal charges against him, for sexual assault. And he had to give up his position as an Uber driver because of the, Uber's position of course would be, they don't want to take that risk for their passengers.
They can also affect relationships with children and family members, even friends. You know, despite the fact that we have a general principle, it's going back hundreds of years, that you are innocent until proven guilty, the general public doesn't feel that way. And you can be charged and, of course, the, if the word gets out, that can be very distressing to people. They might presume where there's smoke, there's fire, et cetera, et cetera. And, unless they know you very well, and that there's, then they may have a tendency to believe you, so it can have an effect.
And it can affect, and it can be used by somebody, especially if they're making a false accusation, of course they can do things like take their young daughter around, when it's bedtime, take the daughter around to every window and door in the house and assure the child that the house is secure and locked. And that Daddy's not going to be able to come and get them. Clearly that is over-the-top behavior. And even if the allegations are eventually found to be false, that may affect the child's relationship with the person that's been accused. And, over time, if it lasts long enough, then it establishes a new status quo of the relationship between the, how much time the parent is spending with their child. And that status quo may be difficult to reverse because the court might say, well, you know, yeah, this was bad, but you know, adding more disruption or abrupt changes to the child's life may not be in the child's best interest.
And then, lastly, and this is an important point is, is that, you know, if you've been falsely accused of misconduct, of domestic violence, you're going to have trouble trusting the other parent to work together with them. And so it just, as a practical matter, that broken trust is going to make co-parenting more difficult.
So I'm going to talk about how someone makes a false accusation of domestic violence, because there's, there are a number of different channels or agencies in which they can do that, and I put them out on a chart here. This isn't an exhaustive list. It doesn't, this doesn't give you phone numbers who to call when you have a problem. But I just talk about these a little bit.
So, somebody can call up the police and make an accusation and the police will investigate and lay charges under the criminal code.
They can also assist the complainant to make an application under the Protection Against Family Violence Act. Even when the complainant is not really participating, they can go and actually apply to the provincial court, justice of the peace, or a provincial court judge, and get an order that is like a restraining order. It's called an Emergency Protection Order. The police will get other agencies involved in one of them. I've just noted here as Homefront. And we'll come back to that in a little bit.
So, the other place that a false accusation can be made is, or any accusation for that matters to child and family services. And these are child protection authorities, so this is under the Child, Youth, and Family Enhancement Act, and the, they, if there's a concern for the safety, security, and wellbeing of a child, this is where the state will come in and take the child.
What can happen there is that the CFS, or Child and Family Services, will sometimes put pressure on a parent to take steps against their partner if - they say, well, the partner is committing domestic violence, and the CFS will take the position. Well, if you don't do something about it, we're going to take the child away from you too. So, there can be pressure from that organization. And, of course, if you make a false allegation and then Child and Family Services says, yes, you should take the child away or keep the child away from the other parent, then of course that gives you some more, supposed authority for your position.
Of course there's also mandatory reporting obligations from teachers and health professionals and that sort of thing. And so, the allegations can sometimes arise in ways that it's not entirely clear what the ultimate source of those allegations were. And that's, of course, where there's room for false accusations to be made. But somebody can go directly to the provincial court under the Protection Against Family Violence Act and get a, and apply for an Emergency Protection Order. You don't get any chance to respond to that application, it's made on an ex parte, or without notice, basis and thereafter it has to be reviewed back in the court of Queen's Bench and confirmed under that same act. But the, an individual can also go directly to the court of Queen's Bench and apply for an order either under the Protection Against Family Violence Act, or under the Family Law Act. But the restraining order provisions are under the Protection Against Family Violence Act.
But there are also provisions for just general restraining orders. And so there's quite a bit of law about whether there's a difference between the court's general jurisdiction to issue restraining orders and the specific requirements of the Protection Against Family Violence Act. And that can create some unusual situations because the tests are different under those acts. And then, lastly, the Divorce Act, there has been some recent amendments to the Divorce Act. And we're going to take a look at those in a moment. And those amendments deal directly with the allegations of domestic violence.
And they actually follow laws that were in place in a number of provinces, including Alberta, so to some extent the law isn't particularly new in this regard, although there are some significant changes to the Divorce Act that require mandatory reporting of criminal and child protection proceedings when seeking an order under the Divorce Act. And that's also been extended to the applications for orders under the Family Law Act.
So I just wanted to say that one of the, so we've talked about the, some of the statutes that govern this issue, but these, the concerns regarding domestic violence are also part of - I got to say that the definition of domestic violence, we're going to go over that a little bit. It's been heavily influenced by modern social science and ideologies, and I'm not making a statement here about the validity of that social science or the, or what might be perceived as ideological positions. What I'm saying is that those changes, I think, have made it easier to, for people to use, false accusations, or accusations of behavior that we wouldn't normally have, or historically regarded as violent or domestic violence, that definition has been expanded.
And so I'll just read to you. So, what can, I'm just going to go back to the police and the Homefront comment there. They, when a person is charged with a domestic violence offense, and there's a number of them, there's actually a specialized courtroom that's set aside in Calgary to deal with these allegations.
And there is a team that is, sets up shop, in the pre-COVID days. I'm not sure actually what they're doing in the, in the COVID days. It's out there, but it's a little less accessible to the, to council. But at the back of the courtroom, there'd be a room. And in that room there, you would have the crown prosecutor, you would have a representative of the Calgary police service, a representative of the Child and Family Services to deal with child protection concerns, and a representative of Homefront.
And Homefront is a part of the Calgary Domestic Violence Collective. And I'm just going to read to how they define domestic violence. So they're an organization that's sitting in the room, assisting the crown prosecutor to make decisions regarding a resolution of the case, or how the case is going to proceed. They're also in contact with the victims of domestic violence, which is a good thing. Obviously none of us are advocating that domestic violence is not a, is a good thing. Obviously it's a bad thing. And so, so the Homefront is there to provide support to victims, and that's a positive thing. But I'm just gonna read the definition that you can get off of their website, which is:
"Domestic violence is the attempt, act, or intent, of someone within a relationship, where their relationship is characterized by intimacy, dependency, or trust, to intimidate, either by threat or by the use of physical force on another person or property, inflicting pain. Another person or property. The purpose of the abuse is to control and or exploit through neglect, intimidation, inducement of fear, or by inflicting pain. Abusive behavior can take many forms."
And, of course, this is where it starts to get a little iffier in my view, okay? "Abusive behavior can take many forms, including verbal, physical, sexual, psychological, emotional, spiritual, and economic, and the violation of rights. All forms of abusive behavior or ways in which one human being is trying to have control and/or exploit, or have power over, another.
So you can see that there is, if anybody's done any kind of social studies work, you can see that there's certainly the influence of modern social science principles in that.
I'm gonna say that there's continuing pressure to change the laws even further to make legal defenses more difficult, and even to interfere with how lawyers represent their clients. Although I am hopeful that that isn't going to go anywhere.
Now. The, I'm just going to say, the recent amendments in family law make it mandatory to raise domestic violence issues, and developments in criminal law over the last number of years have been increasing victim rights.They restrict defenses and the evidence that can be called and that sort of thing.
Now. So I'll just go over again, the definition of domestic violence, it's in the Divorce Act. And notice that it's any conduct, whether or not the conduct constitutes a criminal offense, that constitutes a pattern of coercive and controlling behavior. What's interesting is that there's also provisions in the criminal code that have been used to make behavior criminal that was not previously considered a criminal. I would say, if something is going to, if behavior is going to cause somebody emotional harm, that there is some pressure to make that a criminal offense. And of course that is a very subjective, a very subjective test, I suppose, that's a legal way of describing it, a subjective test of what, of what constitutes an offense. It's all really in the minds, mind or emotions or feelings of the victim.
So you see that conduct, again, carry on, conduct that causes the other family to fear for their own safety over that of another person, such as a child. And that of course, is a reasonable proposition, directly or indirectly exposes a child to such conduct.
I'm not sure why the indirectly is in there, clearly exposing a child to domestic violence can be harmful. They've probably thrown in the indirect as a way to just make sure we catch everything. Again, the Divorce Act sets out a number of things. Physical abuse, yeah, we get that, obviously sexual abuse. And of course sexual abuse can include behavior that has nothing to do with children.
It is, you know, misunderstandings in the bedroom between the parents can lead to charges. And I've actually had experience with exactly that kind of case. Threats to kill or cause bodily harm to any person. Of course, that's, that's included in the definition. Harassment, including stalking.
I can tell you that I'm dealing with a case where the degree of harassment and including, and stalking is so minimal, I am actually surprised that the case has legs at all, but there is, seems to be a lot of pressure to lay these charges and get them, get them going, despite what I would argue would be some common sense about it. And that's one of the difficulties we have in this area.
So some more, failure to provide the necessaries of life. Obviously that's an important thing. Again, it's one of those things, hopefully the crown prosecutor and the police aren't taking that to extremes, but there's nothing in here, per se, that defines what that limit is.
And then here we have, again, psychological abuse, financial abuse. Now obviously financial, psychological abuse and financial abuse are not cool, but, you know, for example, the, say one party is, in a relationship, is controlling the money just because the other party is what we call a spendthrift. They spend crazy and they, and so the family says, you know what? So-and-so, you know, this particular parent is better at managing the money. And they manage it responsibly. And they just keep doing it. Well, is that, is that a pattern of coersive control?
Well, certainly there's a matter of degree, but then that's where the risk is of false allegations, because there's perhaps a kernel of truth to it. That, well, yes, of course I, I was looking after all the bills, so I'm not sure, why is that, why is that abuse? Okay. And then obviously threats to kill, or harm an animal, or damage property that, there is clear associations between harm to animals, and, harm to, the propensity to violence towards other people. So some of these make sense, of course. And an actual killing or harming of an animal, or the damaging of property. And again, The damaging of property, it could be, even minor damage to property. Somebody slams a door and the glass breaks. Do we have a, you know, does that give rise to criminal assault charges? It could. And it has, in my experience. And also, it gives rise to trouble in the family law side.
So I am just going to give a quick example of a multi, what I call a multi-pronged attack. I don't know, I just coined that word up when I was preparing for this talk. So what can happen is, first off, as we said, there's a number, number of agencies that are involved. So, Mom makes a complaint to the police, and also to child and family services. And then, before anything actually, before those agencies actually do anything, before the police actually go and say to Dad that you're being charged, she files an application in the court of Queen's Bench, for a Queen's Bench protection order, which is a restraining order, and she files a family law application in provincial court, the family court, and asking for sole custody and supervise access for Dad. And in these applications, she says, oh, the police are investigating, and child and family services that said to me that I must not allow that to be anywhere near the children. And there's no specificity to the allegations. And so the court, and again, this is, a lot of it depends on the context in which these allegations are being made. The court will say, well, the protection order, in this particular case that I'm thinking of, the protection order wasn't granted, it wasn't dismissed, but it was just kind of left hanging there as, well, if she ever gets some, some evidence that would be relevant then we might come back and revisit this.
The Family Law Act, so the, sorry, going back to the restraining order, what that, what they're doing there is they're, they're concerned with, we don't want to infringe somebody's liberty. That's the person who is being accused. We don't want to infringe on their liberty unless we've got some clear evidence of what it is, and why we're doing it.
On the provincial, and the family, the family court, however, the test is what's in the best interest of the child. And you don't want to make a, you don't want to do, to make a mistake and unknowingly expose, or take the risk that you're exposing the child to domestic violence.
So, so Mom wins in the family court. Family court, she doesn't get the restraining order, but nobody has any information 'cause there hasn't been any specification. Then when we find out, then when the client is eventually contacted by the police, we discover that in fact, that the allegation deals with allegedly nonconsensual sex in the course of what I'd say is a normal marriage, marital relationship.
And that gives rise to a problem that, you know, there was a Supreme Court of Canada decision a few years ago that said, that tried to draw a, where they were asked to draw a line on this issue of consent and say, well, you know, if a husband kisses his wife while she's sleeping that's, according to the Supreme Court of Canada, that is technically a nonconsensual sexual act because you cannot consent to something, and you cannot have the freedom to withdraw your consent, if you are sleeping. And the case that they're dealing with was a case of, of where the parties were into some sadomasochism and choking, and the question then was, well, if the woman had said in advance that she could, that she was consenting to all of this, doesn't that count when she's, when she's unconscious as a result of the activity that she was consenting to. The Supreme Court said we're not going to get into that, drawing that kind of distinction. If somebody is unconscious, they're unconscious and that's the end of it. And they said, well, when raised the question about the, how does that affect, you know, the happily married couple where the husband kisses his wife, while she's sleeping, the Supreme Court said, well, we're going to leave that to prosecutorial discretion.
Well, how come that didn't apply in my client's case? So we ended up in a trial and after the trial that, the Crown withdrew the charges at that point, but that happened quite a bit of time after the damage had been done in the family, the family court.
So, how to deal with false accusations. Now we're gone, we're a little over the 30 minutes here. First off, it's important to recognize that every case is different. There's no boiler plate out there that says, well, this is how you do it. The timelines can be different. The order of things that are done, the allegations may be different. The kernels of truth that the allegations are based on may be different. It's important to get legal representation as early as possible. And, when I say that, I'm saying that, here's what a lawyer does for you. Is, and you gotta, you gotta say what, what's going on to the lawyer because it's, it's different.
The lawyer is gonna give you an, is going to be able to take a look at the allegations, and what your views are, in the context of how a court is going to look at it, and we'll have opinions about how other lawyers are going to look at it, and they'll be able to say, try to figure out a strategy based on an objective view of what's actually going on.
I also think that it's important to get representation from council that know both sides, both the criminal and the family law side. And here's a practical problem that arises. When you are charged with a crime, the Crown is obliged to give a disclosure of the nature of the allegations to the accused.
And that disclosure is subject to a very strict rule that it can only be used to make full answer in defense to the criminal charges. It can't be used in the family law proceedings. So going back to my case with the spousal sexual assault issue, I could not use the disclosure that I got from the criminal proceedings to say to the, to the family law court, look, the child wasn't even in the room. This was, there was no violence. There was no threats. There was no, there was nothing other than, you know, the parties had had sex and when they fell asleep, he wakes up, they continue, she's asleep and then says later, does nothing to stop him. And then says later that she had withdrawn her, that she had just frozen and didn't, had withdrawn her consent.
When she was being interviewed, they, the police officers - so were there any other incidents? And this had happened, you know, a couple of years before the separation. And the answer was I'm racking my brain trying to think of something. And then she comes up with another incident where, again, it was fully awake, consensual sex, and it got uncomfortable, and she asked her husband to stop and he didn't stop quite quick enough.
And they laid charges on that basis. She had also made allegations of sexual contact between the son and the, and the father, that she had observed, and the Crown in that case, and the police actually, didn't lay charges on that because there was nothing sexual about the conduct. But you can see that there's a lot of moving parts on that stuff.
So the disclosure doesn't flow easily from the criminal side to the family law side. Which raises a question about the changes to the Divorce Act that says we got to pay attention to the criminal proceedings, even if they're not resolved. So I think that this is ripe for an argument that we've got to do something to compel the disclosure of the criminal stuff into the family law proceedings.
But, as far as I know, that hasn't been determined yet by the courts. But you can work the other way, taking the insights and the evidence from the family law situation and use that to, the lawyer can use that to press the case on the criminal side, which is exactly what I did when cross-examining the complainant. And the judge allowed the questions on the basis that they went to the motive to fabricate the evidence.
So I'm just gonna wrap up. It's important to follow the advice you get dealing with both legal and non-legal aspects of your case because oftentimes there's psychological components. Reach out to organizations like the Canadian council for men and families and there are lots of resources there.
Have realistic expectations about timelines, about outcomes. Every case is different, unfortunately. It might have to, it might be a harder case for some people and an easier case for others. And, lastly, accept what you can and cannot change. My standard advice for people is, you know, we can't control what other people are going to say, do, think, or feel, we can only control ourselves.
And it's important to remember that, because if you get fixated on trying to change what other people are doing, then you're going to be disappointed and frustrated. And of course that's just gonna make things worse. Doesn't mean that we can't do things to influence the outcome.
Contact Calgary Family Lawyer Charles Fair
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Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.