Allegations of sexual abuse against a child have a way of arising in the midst of custody and access litigation in Ontario. Sometimes those allegations are well founded. Other times they are tactical maneuvers to minimize the other parent’s role. This article teaches Ontario family lawyers how to handle such allegations in light of the recent Superior Court of Justice decision Daya v. Daya, 2015 ONSC 6240 (CanLII).
In Daya, Father sought access to the three and a half year old daughter. Mother resisted, alleging he sexually abused Daughter. She made the same allegation at least twice prior. Police and Children’s Aid Society investigations found no evidence of abuse. Mother independently retained a child therapist without notice to Father. The therapist did not inquire into the parties’ history of family conflict. Mother was present at the sessions and, on several occasions, told the therapist what Daughter “meant” to say. The Office of the Children’s Lawyer recommended sole custody to Mother and access to Father.
Justice Jarvis leaned on Bates v. Bates, 2011 ONSC 3027 (CanLII) for the analytical foundation to allegations of sexual abuse against a child. There are three approaches:
- Balance of Probabilities: this approach is binary because it generates the conclusion that the child was or was not abused. The problem, then, is that a finding of no sexual abuse might be made despite a significant risk that the abuse did occur. Consequently, this standard does not help the court determine the degree of risk of harm and the best interests of the child.
- Real or Substantial Risk of Harm: the court must determine whether there is a real or substantial risk of harm. The problem with this approach is that the words “real or substantial” establish a threshold and thereby distract from the task of assessing the risk of harm and determining the best interests of the child.
- Risk of Harm: this approach flows from Young v. Young, 1993 CanLII 34 (SCC). Based on all the evidence, the court must ascertain the existence and extent of any risk of harm. The risk must be plotted on a continuum from no risk to certainty that risk will materialize. When there is any possibility of materialization, the court must consider the degree of potential harm. Where the risk falls on the continuum determines the amount of weight attributed to the risk. The risk then becomes one of many factors in determining the child’s best interests.
Justice Jarvis applied the Risk of Harm Analysis, finding that there was no risk of harm and that Mother simply does not accept the findings of the numerous agencies she involved.
Ontario family lawyers know that allegations of sexual abuse against a child arise all too frequently in family court. It is sad when the allegations are tactical and sadder when they are true. Whatever the situation, Daya teaches us how to handle these allegations.
Jeffrey L. Hartman