Stop me if you?ve heard this one: divorce is often messy and can bring out the negative traits in people. Couples frequently disagree on issues like custody, parenting schedules and what to do with the matrimonial home, among other issues.
In my practice, I see the divorce process frequently transform otherwise reasonable people into the worst versions of themselves. They?re hurt, angry, unwilling to compromise and are intent on making their former partner pay for causing such a drastic change in their lives.
Looking to curry favour with the court, people sometimes blatantly fabricate allegations against their partner where none exist ?? claiming emotional, physical or sexual abuse, drug/alcohol problems and in some situations, criminal activity. Unsubstantiated claims of abuse in an attempt to game the system are rarely successful.
Let me be clear: there are many situations in family law matters where litigants have legitimate claims of abuse that can be proven through evidence. Sadly, I see it all too often in my practice.
Court will thoroughly investigate claims
In high-conflict custody battles, one parent may be tempted to believe that accusing the other parent of abuse will increase their chance of winning child custody, but it's a flawed strategy, says Jennifer Wolf.
?It?s true that judges err on the side of caution when it comes to children?s safety. However, judges do not favour limiting parental rights unless it's absolutely necessary ? and they're well aware that false accusations are made often. As a result, any and all claims of abuse will be thoroughly investigated by the court,? she writes.
Abuse claims are always taken seriously by the court. When an allegation of domestic abuse or violence has been made, a judge may issue a no-contact order, meaning the accused could be ordered by the court to leave the home and have no contact with the accuser or the children.
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Lying is never a good strategy in legal matters. The truth will ultimately come out, and when it does, it could end up costing you much more than you bargained for.
Allegations must be supported by evidence
In a current case involving a father who brought a motion to increase the parenting time terms set out in a divorce order, the mother challenged, claiming their child had suffered injuries while in the father?s care that required medical attention.
The judge found that many of the allegations made by the mother were not supported by evidence.
?The mother has inappropriately involved the child in the adult conflict, which risks impairing the child?s relationship with the father,? the judge wrote. ?The father has demonstrated an impressive commitment to having a meaningful relationship with the child, despite the roadblocks put up by the mother.
?The court finds that unless the child spends more extensive parenting time with the father, there is a real risk that the mother will undermine this relationship to the child?s detriment. He needs to be much more than a ?sperm donor? to the child.?
Another recent news story highlights how fabrications can backfire for those involved in family legal matters. A B.C. man lost his bid for spousal support after he falsely reported his former partner for immigration fraud.
The judge was not amused. Not only did the man?s claim for support fail, but the judge also ordered him to pay his former partner $1,000 a month for 12 months.
The man?s allegations of ?fraud, violence, witness threatening and working in the sex-trade were not shown at trial to be other than baseless assertions," said Justice Gordon Funt in his ruling. "An immigrant applying for permanent residency status is vulnerable to threats, intimidation and unfounded accusations.?
Emotional abuse claims common
The most common allegations that come up in child custody and divorce hearings are accusations of emotional, physical and substance abuse. Just about every case I handle involves complaints of emotional abuse by one or both parties.
Determining whether an allegation is true can be a time-consuming and expensive ordeal. It will often involve affidavits or testimony from third parties ?? therapists, treatment providers, police, children?s aid societies ?? who can provide evidence to substantiate or refute the claims.
For example, if a spouse alleges physical abuse and police records show the accused has been charged or convicted, that would meet the standard of legal proof. But, if police were never called to the home or there?s no other objective evidence to support the claim, it?s likely to fall apart.
Similarly, if one party alleges the other has a substance abuse issue, which puts their ability to parent the children into question, the court will require evidence. Was the accused ever charged with drinking and driving or possession of narcotics? Is there a third party who will testify to an ongoing problem?
It?s important to point out that if it?s revealed that false claims have been made knowingly, that person making the claims may be on the hook to pick up court costs.
The period following separation is an emotionally volatile time for couples. If you believe your former partner may present false allegations about you in court, it?s vital to take precautions. If you have to meet with your spouse, ensure there?s another person with you. It?s also a good idea to advise them you will be video recording all conversations you have with them.
In the many years I?ve been practising family law, I have witnessed the toll a high-conflict divorce takes on parents and children. If you can rise above the anger and bitterness, you?ll have a much better shot at building a happier life for you and your children on the other side.