Michael Ford (post until Oct. 31/19)

False allegations used to gain 'tactical advantage' in divorce

False accusations of various types, including assault in divorce and custody cases, can drive up court costs and — even if dismissed — make it difficult to reach a negotiated settlement, says Toronto family lawyer Erin Chaiton-Murray.

“Even once criminal charges are resolved, it taints the whole family law proceeding,” says Chaiton-Murray, Senior Associate at Fogelman Law. “It’s hard to get the parties back on track to a more co-operative, amicable process for resolution.”

Former Alberta justice minister Jonathan Denis was accused by his ex-wife Breanna Palmer of tampering with the brakes on her car, kneeing her in the face and throwing destructive temper tantrums, the Canadian Press reports. Denis recently released emails that he said showed Palmer withdrawing the allegations. Palmer denied writing the emails, according to the news story.

While some family law cases reveal verified reports of assault or other criminal acts, there are also cases where one spouse will make allegations to gain a “tactical advantage,” Chaiton-Murray tells AdvocateDaily.com.

“Unfortunately, a situation that occurs from time to time when parents are separating is that one parent will make allegations about something that the other parent has done,” she says. “It can be that the complaining party is doing it to better position themselves either with respect to custody or to establish something with respect to the parenting schedule.

"In many ways, these are the worst kinds of allegations to have to deal with, particularly when they’re not true, because it is ultimately the children who suffer the result of having unjustifiable restrictions or even no contact with the other parent.”

Negotiating the process of separation in high conflict situations, with both spouses still living together in the same home, can also unfortunately lead to allegations being made and the police sometimes becoming involved, she says.

“One party may allege, truthfully or not, that the other person has assaulted them in some way during a moment of heated discussion or conflict in the home,” Chaiton-Murray says. “That may be done knowing that the outcome of calling police is likely that the other party may be charged with a criminal offence and then ordered to leave the house — where that party might not otherwise have agreed to move out.”

The process of resolving any criminal charges can be lengthy.

“It’s not a quick resolution,” she says. “Sometimes charges are withdrawn along the way and other times the matter proceeds to trial more than a year later.”

If children are involved, criminal charges, bail conditions or other temporary orders can make it complicated, or at the very least delay the accused parent’s ability to see their children.

“And, it drives everyone's costs up because the person accused of criminal charges is now required to retain family law counsel and criminal counsel,” Chaiton-Murray says.

If someone believes they have been falsely accused and they do not want to plead guilty or accept a withdrawal of the charge in exchange for entering into a peace bond, then they are likely stuck with bail conditions in place until there is a trial, which could be a year away, she says.

“So in the meantime, they have to deal with the implications of those charges,” Chaiton-Murray says.

If the allegations are subsequently withdrawn — or thrown out in criminal court — they shouldn’t taint a family court judge’s ruling against the person who had been accused.

“If I am acting for the person who was accused of some type of criminal behaviour and those charges are not proven or withdrawn, I’d want to highlight that the other party may have been acting unreasonably in causing the charges to be laid, and as result, they increased the time, cost and conflict for everyone,” Chaiton-Murray says.

If there are no criminal charges laid, allegations of one party’s abuse of the other, or other types of wrongdoing, can be difficult to prove — or disprove — in family court.

“When we’re dealing with clients and they raise concerns about any improper behaviour on the part of the other party, we have to think carefully about what facts and evidence we actually have,” she says. “We have to deal with it properly and sensitively, so that we’re not just throwing allegations out there and seeing what sticks.”


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