Wednesday 19 April 2000

Judge's tough action gives new hope

Dave Brown
The Ottawa Citizen

In a rare court move last week, a defiant Ottawa mother was sent to jail for 21 days for breaching custody and access court orders, and ordered to pay $9,000 in penalties. Of that amount, $4,000 is to offset father's legal bill, and $5,000 is straight penalty to be paid to the father.

The tough action by Justice Maria Linhares de Sousa is giving new hope family court orders are growing muscles.

Lawyer Allan Hirsch represented the father. In his presentation to the court, he referred to a 1998 Brampton case in which a mother was jailed for 60 days for repeated accusations of abuse, and repeated refusal to obey a court's access orders. The Brampton case was also a rare exception. Family court orders in the past, except for support issues, have not been enforced.

The Ottawa case was based on the mother's continued attempts to convince her nine-year-old son to leave his father and live with her. There was a court order in place that she stop doing that. Father claimed her continued interference was the cause of behavioural problems in the boy. Previous custody and access orders were issued in December by Justice Monique Metivier. Mother felt those orders were wrong.

Because children could be embarrassed by the parental fight, names are withheld.

Mother felt last week's judgments were also wrong. It shows in transcripts.

The Court: "Do you have anything more to say concerning the disposition?"

(Mother): "Yeah. Everything you've heard is lies and I will appeal it."

The Court: "I have found you in contempt of court ..."

(Mother): "I know. Too bad."

Mr. Hirsch said yesterday the importance of this latest harsh treatment is that it underlines the need for participants in such actions to "conduct yourself honourably." He said court orders were intended to stabilize these difficult family periods. "To undermine a custody order is to destabilize a child."

The issue of children being destabilized by lengthy and convoluted legal processes came under fire during hearings of the Joint Senate-Commons Committee on Child Custody and Access. In May 1998, committee joint chairman Roger Gallaway challenged the issue of false allegations.

In front of the committee was a delegation from Ottawa-Carleton Children's Aid Society. When an abuse allegation pops up during a custody and access fight, the CAS experience is that out of five cases, three will be false. The word "false" was used by Mr. Gallaway, and disputed by the society's director of legal services, Heidi Polowin. She preferred the word "unsubstantiated." Regardless of the word used, said Mr. Gallaway, the committee had at that point heard submissions showing such allegations could separate child from parent, usually father, for years.

Transcript from that hearing:

Mr. Gallaway: "So you had 600 false allegations (in one year)."

Ms. Polowin: "False is a word I think we should avoid."

Mr. Gallaway: "Let me put it another way: 600 allegations that you couldn't stick on anyone."

Ms. Polowin: "That we could not substantiate. ... The police would not charge."

Mr. Gallaway: "I'm finding this distressing. The police will not charge, yet you're leaving this lingering doubt. ... Some of these people must be innocent."

Ms. Polowin: "Absolutely, some of them are innocent."

Mr. Gallaway: "Can you tell me, of those complaints, how many came from men and how many from women."

Ms. Polowin: "We don't keep statistics by gender."

Mr. Gallaway: "You have the names of the complainants ... so you could, in fact, find out?"

Ms. Polowin: "If we chose to do the research, yes."

Men's groups have for years been pointing at the false (unsubstantiated) abuse allegation issue. Once thrown into the mix, a father's chances of seeing his children again are remote. Few men have had the financial resources to disprove such allegations. When they did, there were no penalties applied to their accusers. It's an issue Senator Anne Cools has been fighting for years. In February during a Senate speech, she called the false abuse allegation a "pernicious heart of darkness" in the justice system. She wants laws in place that would punish not only those making false allegations, but their lawyers too.

Sweeping changes recommended by the joint committee have been shelved by Justice Minister Anne McLellan.

Dave Brown is the Citizen's senior editor. His e-mail address is dbrown@thecitizen.southam.ca Read previous

Dave Brown columns at www.ottawacitizen.com

Copyright 2000 Ottawa Citizen