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Friday, May 28, 1999New boundaries for custody battles
The case that won the battle for fathers
A four-year custody battle ends with a child being reunited with her father after a Manitoba judge criticizes social services for pursuing unfounded sexual abuse allegations against him. Donna Laframboise reports
Fred Greenslade, National Post / Regan Thatcher, the family law lawyer who represented Mr. A., says that while false sexual abuse allegations in divorce cases have declined in recent years, they're still too common.
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In September, 1995, a common-law relationship between Mr. A. and Ms. T. (who cannot be named in order to protect the identity of their daughter) broke down.
Ms. T., whom Madame Justice Laurie Allen, the judge presiding over the custody hearing of their child, describes as mentally ill, went to Osborne House, a Winnipeg women's shelter.
While in residence at the shelter, the couple's then 31Ú2 daughter, K., underwent a child sexual abuse education program.
Soon afterward, Ms. T. reported to a doctor that K. claimed her father had sexually molested her during an access visit. The doctor found "no medical evidence of sexual abuse," but referred the child to Family Services (the equivalent of Children's Aid in other provinces).
After a social worker showed K. a video about sexual abuse intended for children aged six to 12, K. reported to the social worker that her father had touched her pelvic area.
Catherine Hudek, the director of abuse services, who had become a counsellor to Ms. T., continued to insist Mr. A. was guilty even when the police and a psychologist disagreed. In the view of the judge, the child's mother might also have abandoned her suspicions "but for the forceful intervention of Ms. Hudek."
Even though internal memos show that Ms. Hudek had concerns about Ms. T.'s mental health, Judge Allen says Ms. Hudek did not share them with the court. "She did not feel that Ms. T.'s mental health was an issue in custody/access proceedings, a statement I find incredible," wrote the judge.
"She wrote public reports on behalf of the agency about Ms. T.'s parenting ability which were . . . at variance with her own concerns as to Ms. T's mental stability."
Judge Allen awarded sole custody of K. to Mr. A.
Ms. Hudek, for her part, resigned her position in July, 1997, to pursue a master's degree. Currently on contract with the Manitoba government, she is writing a manual on how to properly investigate child sexual abuse allegations.
Regan Thatcher, the family law lawyer who represented Mr. A., says that while false sexual abuse allegations in divorce cases have declined in recent years, they're still too common. "It's not as bad as it used to be. I mean it used to be just terrible. But you talk to lawyers that do domestic law and they're going to tell you false allegations happen all the time."
Mr. A., whose mother mortgaged her house to help him pay his legal costs, told the National Post: "I feel pretty good. I'm really grateful. I'm glad the judge saw through it, but the financial toll has been major league."
Mr. A. was also assisted by Louise Malenfant, a community activist who has helped 51 people falsely accused of child sexual abuse during divorce proceedings clear their names over the past five years.
"This child has been robbed of her childhood. She's now a loaded gun likely to make other allegations against other people who upset her in the future. She's learned the process, and now we have to help her unlearn it," she said.
The case follows publication of a Queen's University study into child abuse claims, details of which were carried in the National Post yesterday, which showed that nearly one-third of allegations made during the process of parental separation are unproveable or false. The study's release follows a joint parliamentary committee report that dealt specifically with custody and access issues.
But supporting legislation was delayed when Anne McLellan, the Justice Minister, scheduled a new round of public consultations expected to span the next three years. Liberal MP Roger Gallaway (Sarnia-Lambton), who co-chaired the joint committee as it travelled across the country, says three years is too long to wait. "If it's three years, it's 150,000 children and tens of thousands of parents who are in this totally insane system.''
The Queen's report recommends provisions for the proper assessment of potential bias on the part of the accuser in custody cases and adequate representation for both the alleged abuser and the child.
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