Last week, the Ontario Court of Appeal issued a decision confirming a trial decision in a bitter, high-conflict divorce in southern Ontario. There are many important aspects of this decision, all of which will be discussed in subsequent blog posts. Today, the lesson learned from this decision is that making false allegations of domestic violence during a divorce, negatively impacts your custody application.
False Allegations of Domestic Violence in Ontario
The parents in this case married in 2006 and they had a child in 2014. In late 2015, they separated and the version of what happened on the date of separation was an issue at trial. The mother said that the father pushed her after becoming agitated when the baby was crying. The father had a very different story and said the mother became angry and assaulted the father by scratching his face and breaking his glasses.
The father took pictures of his face immediately after leaving the residence that evening. This evidence proved to be crucial in the assessment on who was telling the truth. While the father filed the pictures as evidence, he was confronted during cross-examination that the pictures were not authentic. The father was able to use his phone on the witness stand and show the metadata on the photograph, which was accepted.
A further issue arose a few years later when the father attempted to return the child after his access visit. The paternal grandmother brought the child to the mother. The child didn’t want to go with the mother and began crying. The mother called 911 and said the father was abducting the child. When police arrived an hour later, the father was still sitting in front of the house with the child.
The Judge found the mother had lied to the 911 operator by saying the father was trying to abduct the child. Her story defied logic, as there would be no reason for the father to remain at the house if he was attempting to abduct the child. This event proved to be very detrimental to the credibility of the mother during the trial.
Parental Alienation Based on False Allegations of Domestic Violence
Immediately after separation, the mother maintained the allegations of domestic violence and refused to allow the father to visit with the child. After three months, the mother relented and allowed supervised access. This continued for almost another year. The mother attempted to justify her actions through concerns of the father’s temper and past violence.
The Judge found that the mother’s actions were unreasonable and were meant to hurt the relationship between the father and child. It is likely that the mother thought that she was doing what would help her over the long term, but it turned out to be detrimental to her case.
Steps to Sole Custody
What the mother did in this case is exactly what you can’t do if you are seeking sole custody of your child. The mother made false allegations, kept the child from the father and then insisted on supervised access. At every step of the process, the father was making settlement proposals in an effort to resolve the ongoing litigation. The mother was refusing to negotiate on anything.
One indicator of a parent who is refusing to be reasonable is using several lawyers. The mother had six different lawyers in this proceeding. There are times in a lengthy legal proceeding that there will be a change in lawyer. An example is when a lawyer and client may not see things the same way. But having this happen on six different occasions defies logic.
Sole Custody Granted to Father
The result in this case was that the father was granted sole custody, with parenting time being split between both families. This means that the father was responsible for all major decisions concerning the child. These decisions would include schooling, residence, religion and major medical issues. The Judge found that the mother tried to exclude the father from the child’s life. This meant that the mother was not capable of engaging the father on major decisions.
This was taken to the Court of Appeal where the mother argued that her actions should not be considered when determining the best interests of the child. The Court of Appeal did not agree and found that the Judge made the the appropriate decision. The Court of Appeal found that the mother’s unwillingness and inability to communicate with the father precluded an order for joint custody.
I Want Sole Custody of My Child in Ontario
Seeking sole custody of a child is difficult. It means you are trying to have a Judge rule that the other parent is incapable of looking out for the best interests of the child. An application for sole custody needs to be based on a demonstrated pattern of behaviour that can be proven. For instance, if you are seeking sole custody based on a concern for safety, you will be in a far stronger position with a criminal conviction.
It is no secret that police have little discretion when it comes to domestic violence. If you have made a complaint to police and after an investigation, no charges are laid, you may want to look at an alternative strategy. Though burden of proof is much lower in family court than in criminal court, continuing with unproven allegations may do you more harm than good.
Be reasonable in your actions and be reasonable in dealing with the other parent. This tactic will serve you well in the long run. Reasonableness also needs to include good faith negotiation, to reduce the need to have a Judge make decisions for your family.
Next Step Towards Sole Custody
If you are seeking sole custody, contact Hearty Law for legal assistance. Hearty Law provides legal services on custody, access, child support, spousal support, divorce, property division and other family law issues.
Hearty Law serves Toronto, Ottawa and surrounding communities.