Allegations of child abuse in the context of parental separation: a discussion paper


3.0  Offences for False Allegations of Abuse and Liability Issues

3.1 Offences for False Allegations of Abuse

In theory, a person who knowingly makes a false allegation of sexual abuse may be committing a number of offences under the Criminal Code.  A person who knowingly makes a false statement to a police officer accusing another person of committing a crime (which would include any situation of child abuse) commits the offence of mischief, contrary to section 140 of the Code.  If the false allegation resulted in a civil or criminal proceeding in which the person who made the allegation testified, other offences might be committed, including perjury (giving false evidence under oath, section 131) or making a false affidavit (section 138).  If the accuser persuaded or misled the child or another person to make a false statement, this would be the offence of obstruction of justice (section 139).  However, given the criminal standard of proof and the difficulty of proving that the person who made the statement knew it was false, there are very few charges laid under any of these sections in any context.

The difficulty with laying any of these charges is that a prosecution will only succeed if it can be proven beyond a reasonable doubt that the statement was false and that the person making the statement knew it was false.  The maker of a false report has a defence if they have an "honest belief" in the allegation when it was made, even if the belief was not reasonable.  It may be that the accuser would be found liable if it can be proven that he or she was "wilfully blind" to the falsity of the statement when it was made.[31]

We were able to locate only one reported Canadian case since 1990 in which the maker of a false allegation in the context of parental separation was charged with any of these offences.  In A.N.  v. A.R.[32] the parents were never married and separated shortly after the child was born.  The mother initially had de facto custody and began to make allegations that the father was sexually abusing the child.  The allegations became increasingly serious.  At first the father was denied access, though he later obtained interim supervised access, and eventually obtained custody.  He only obtained custody after the police and Children's Aid Society investigated thoroughly, and four mental health professionals conducted assessments.  These professionals all concluded that the allegations were unfounded, and a result of the mother's "irrational fixation" on sexual abuse and her "delusional thinking."  As a result of persisting in making these allegations, the mother was charged with public mischief and convicted.  Nevertheless, she continued to maintain that the allegations were true and raised the issue of abuse at the custody trial.  The judge observed that the child's emotional health improved since he had ceased living with his delusional mother, and awarded custody to the father with supervised access to the mother.  The judge warned the mother that if she continued with her "delusional thinking," access would become harmful to the child and would be terminated.

There are a few reported Canadian cases which involved female teenagers who made false allegations of sexual abuse in an extra-familial context and were charged with mischief.[33]  It would appear that the girls later recanted and admitted that they knew that the allegations were false, and the prosecution was based on their own admissions that the allegations were false.[34]  Without these confessions, these cases would have been very difficult to prosecute.

3.1.1 Finding of Contempt of Court Against Person Making False Allegation

While there is only one reported case in Canada of a person making a false allegation of abuse in the context of parental separation being criminally charged, there are a few (four out of one hundred and ninety-six) reported cases in which the person making false allegations has been found to be in contempt of court as part of the civil process and subject to sanctions including fines or jail.  These cases all involved a custodial parent with a vengeful attitude or irrational fears refusing to obey an access order.  Typically, before the court imposed a sanction, the custodial parent was warned at several court appearances that a finding of contempt would be forthcoming if access continued to be denied.

A case law review suggests that contempt sanctions are imposed only when police or other professionals have thoroughly investigated and found the allegations without substance.  For example, in the 1998 Ontario case of L.B. v. R.D.,[35] the custodial mother persistently made allegations that the father sexually abused their daughter and that his new wife was physically abusive to the child.  The Children's Aid Society investigated and could find no evidence to support the allegations, but supervised access was ordered.  The mother repeatedly interfered with supervised access visits; the mother's testimony about the reasons for failure to allow supervised access was refuted by the access supervisors, who were professionals, as well as by the Office of the Children's Lawyer.  There were several attempts to enforce access, involving both the police and court appearances.  Ultimately, Judge Dunn decided to impose a sentence of 60 days in jail for civil contempt, finding that there were at least forty occasions on which the mother deliberately failed to comply with the access order.  An appeal judge reduced the sentence to the time served, 9 days.

The use of civil contempt proceedings to enforce access can be a cumbersome and expensive process and judges usually make findings of contempt and impose sanctions like jail as a last resort.

3.2 Liability Issues

3.2.1 Child Protection Agency Liability to the Wrongfully Accused Parent

There have been a number of highly publicized cases in Canada in which individuals have claimed that they have been wrongfully accused of sexual abuse by "overzealous" investigators, and have sought redress in the courts.  In most cases, these individuals have been satisfied with an acquittal in criminal court, or a finding in a civil proceeding that refutes the abuse allegation.  However, in a few cases individuals have sued investigators for monetary damages to compensate for the expense and emotional anguish from being wrongfully alleged to have abused their child.

Perhaps the most noteworthy case[36] of agency incompetence and bad faith began in 1987 when a Children's Aid Society in Ontario supported allegations of sexual abuse made by a mother against her former husband.  The initial allegation of abuse arose in the context of parental separation and related to the couple's young children.  The agency worker with primary responsibility for the investigation was inexperienced, and the judge in the later civil case brought by the former husband concluded that the investigation and subsequent agency conduct were negligent in several critical respects.

Shortly after the initial report from the mother was received, and without interviewing the father, the worker quickly concluded that the mother's sexual abuse allegations were well-founded.  The worker's initial interview with the children had many leading questions, and was conducted in the presence of the mother, who was clearly hostile to the father.  The worker later displayed hostility towards the father and his lawyer, and dismissed any concerns about the mother without investigation.  Indeed, reports by the children of ill treatment by the mother and the worker's direct observation of poor treatment of the children by the mother were ignored by the worker.  The father was not adequately interviewed for his version of the alleged incidents until two years after the initial allegations.  The worker kept very poor notes of the various interviews and none were audio or video recorded.

As the child protection trial proceeded in Family Court, it became apparent that the agency's allegations were groundless, but the agency refused to discontinue the protection application unless the father agreed to forego any claim for court costs.  The child protection trial eventually took 51 days to complete.  The judge in the protection hearing dismissed the agency allegations against the father, awarded him custody of the children, and ordered the agency to pay $60,000 towards the father's legal fees.

The father then began a civil suit against the agency and the child protection worker to recover the balance of his legal and other expenses incurred in his lengthy battle to regain his reputation and custody of his children, as well as punitive damages.  In 1994 in D.B. v. C.A.S. of Durham Region, Justice Somers of the General Division of the Ontario Court of Justice awarded the father over $110,000 in damages resulting from the false allegation of sexual abuse.[37]  The judge in the civil suit concluded that the agency and worker had been negligent and unprofessional in their treatment of the father, negatively affecting both the father and his children.  The judge found that the father, an Anglican minister, suffered emotional trauma and loss of reputation as a result of the child protection proceedings and awarded $35,000 in damages for this, and an additional $10,000 for exemplary damages to punish the "bureaucracy's" incompetence and abusive actions.  The court also awarded a total of $1,500 to the two children for their emotional harm and loss of enjoyment of their relationship with their father.  The trial judge also awarded the father $77,000 to cover legal, travel and telephone costs not previously paid as a result of the Family Court proceeding, though the Ontario Court of Appeal reduced that part of the award by $25,000, ruling that the issue of recovery of legal expenses was fully resolved in the earlier Family Court proceedings.  While the Ontario Court of Appeal reduced the damage award, it affirmed the principle that an agency could be liable if it was both negligent and biased in its investigation.

The decision in D.B. v. C.A.S. of Durham Region may seem burdensome for a public agency with an obligation to investigate all reports of abuse[38] despite limited financial resources.  However, the Court of Appeal emphasized that there was not merely negligence, but actually a demonstration of bias sufficient to conclude that the agency staff was not acting in "good faith."  Not only did the agency carry out an inadequate and biased investigation, it continued a lengthy child protection proceeding only because the father pressed a legitimate claim for payment of his legal costs in the protection hearing.  The decision emphasizes the need for child protection agencies and their workers to conduct fair investigations, and treat fairly those alleged to have abused children.

While D.B. is a very disturbing case, it is the only reported case in Canada where a child protection agency has been found liable to a falsely accused parent.  In other cases where an agency has been found to have supported an unfounded allegation of parental abuse and been sued for alleged incompetence in investigating abuse allegations, the courts have dismissed the claims, generally by finding that the agencies were acting in "good faith" and hence entitled to statutory immunity from civil suits for "mere" negligence, or the cases are still before the courts.[39]

3.2.2 Civil Liability of Professionals and Parents for False Allegations in Abuse Cases

In addition to the issue of child protection agency liability, there are also cases of professional incompetence in situations where allegations of abuse are made, and there is at least the potential for independent professionals involved to be held accountable for their incompetence.[40]  In general, professionals are not liable for "mere errors of judgment" and in some situations will only be liable if they have acted in a biased fashion.

In a number of difficult cases, the parents have become so emotionally enmeshed and convinced of their position that they blame alleged professional incompetence if their position is not vindicated in court.  The professionals may then find themselves involved in expensive but groundless discipline or malpractice proceedings.  Acrimonious custody or access disputes are frequently the source of complaints of professional incompetence to various disciplinary bodies as well as in the courts.

There is a significant degree of civil immunity for alleged negligence arising out of testifying in court about allegations of abuse.  This is the concept known as "privilege."  In the British Columbia case of Carnahan v. Coates,[41] a psychologist who worked for the clinic that was treating the mother was retained by the mother to provide an opinion that supported her application to terminate visits with the father.  Although the psychologist did not interview the father, he concluded that the children had considerable anxiety about their visits with the father, and that their negative attitudes were their own views, rather than merely a reflection of the mother's concerns.  Supported by the testimony of the psychologist, the court terminated the father's access, though after four years the father was able to persuade the courts to reverse the decision and gain a legal right to access, supported by an independent expert who concluded that the "children's wishes were a mirror reflection of their mother's destructive manipulation."

Tragically, by that time it was too late for the father to establish a meaningful relationship with the children, and he "conceded defeat" and ceased trying to enforce access.  In the meantime, the father complained to the British Columbia Psychological Association, which censured the first psychologist for "unethical and unprofessional conduct" in the course of preparing his assessment, including failing to adequately interview the children to ascertain the true reasons for their expressed preferences.  The father then sued the psychologist for negligence and abuse of process that resulted in him losing his relationship with his children.  The court rejected the civil claim as the psychologist had a "qualified privilege" that gave him immunity from civil suit for the opinions he expressed in court, even if he was negligent in formulating them.  The judge did, however, recognize that the grant of privilege was not "absolute" and a witness could be liable if it was proved that there was a "conspiracy" to put forward false testimony.

A 1996 Saskatchewan decision, in R.G. v. Christison,[42] illustrates that professionals who are negligent may, in some extreme situations, be liable for their out-of-court statements, especially if they have lost professional objectivity and become "allied with" a parent.  In this case, the former spouses were involved in an acrimonious custody dispute.  The mother made repeated allegations of sexual abuse against the father and his new wife (both of whom were physicians). Child protection authorities and the police investigated the mother's allegations, and found them to be baseless.  The mother's counsellor continued to support her in the claims of child abuse, though other experts and assessors rejected them.  Even after the child protection authorities, the police and the court rejected the abuse allegations, the mother told various professionals, including teachers of the children, about her allegations.  She also distributed a supporting report from her counsellor, without telling the recipients that the claims had been investigated by the appropriate authorities and rejected.

The father and his new wife sued the mother and her counsellor for defamation and infliction of mental suffering.  The court ruled that the distribution of the report to members of the community was not protected by privilege.  The judge accepted that a parent has a "qualified privilege" arising out of child abuse reporting laws that allows the sharing of "good faith" but inaccurate information about possible child abuse with professionals who work with the children.[43]  However, the court found that the mother was motivated by "malice" since when she distributed the reports she knew that they had been investigated and found baseless.  The judge was critical of the counsellor, noting that she "must be, or should be, aware that in the heat of custody battles [unfounded] charges of emotional, physical and sexual abuse are made with increasing frequency."  The court was also critical of how the counsellor assessed the case, and how she wrote her report and identified completely with one parent.  The mother and counsellor were held jointly liable for $27,000 for defamation (loss of reputation) and various expenses incurred by the plaintiffs.  The counsellor was held solely liable for $15,000 in aggravated damages.  The court still had some sympathy for the position of the mother, and did not want to bankrupt her since she had joint legal custody and liberal access to the children.  Thus, the mother was held solely liable for only $1,000 in aggravated damages.

Lawyers and judges are not immune to being accused of incompetence or bias as a result of their involvement in this type of highly charged case.  For example, in one Ontario case, a father involved in bitter and protracted matrimonial litigation including allegations of sexual abuse argued that the reason he was largely unsuccessful at trial was due to his lawyer's incompetence and the judge's error.  In resolving the dispute over legal fees, the judicial assessment officer rejected the claim of professional incompetence, finding that the client was "not credible" and was a "very difficult" client who "refused to follow the directions" of his lawyers or give them proper instructions.[44]  The client was unsuccessful in appealing both the judge's decision on the merits of his case and the assessment officer's finding that the trial lawyer was not incompetent.  The client also ended up in disputes with other lawyers he retained in this case to handle various appeals over the terms of supervised access and other matters.

It is not uncommon for unsuccessful litigants in these cases to not merely appeal the finding of the trial judge on the basis of judicial error, but to make complaints to the media or to the Canadian Judicial Council about bias.  In one Alberta case, the grandparents of children whose parents had died and who had access rights to the children sought to gain custody, making repeated allegations of abuse.  The allegations were investigated by police and social workers and were rejected by the courts on a number of occasions.  The grandparents were unsuccessful in appealing their case to the Supreme Court of Canada, but continued to complain about a "conspiracy" involving lawyers, police, social workers and all of the judges who dismissed their allegations.  The grandparents publicized their complaints about this "conspiracy" to the media and through a campaign of letter writing and pamphlet distribution.[45]

Although there are undoubtedly a few incompetent professionals involved in cases of allegations of abuse after parents separate, it is also apparent that at least some of the parents involved in these cases are emotionally unbalanced, either before the process starts or as they litigate through the legal system, and are all too willing to blame others for their own failings.  This understandably makes some professionals wary of being involved in this type of case.