I. Conduct

Author:Julien D. Payne - Marilyn A. Payne

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1) General

Subsections 16(9) and 17(6) of the Divorce Act stipulate that the court, in making or varying an order for custody or access,223shall not take into consideration the past conduct of a person, unless the conduct is relevant to the ability of that person to act as a parent.224

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Perceptions of morality have changed. In past generations, a parent living in an adulterous relationship would be automatically denied custody. Today, spousal conduct, which does not overtly reflect on parenting ability, is generally disregarded. A court may be concerned with the viability of a parent’s non-marital cohabitational relationship but is unconcerned with historical perceptions of the morality of the relationship. Contemporary issues of misconduct are more likely to focus on domestic violence225or parental alienation.226On an application to change the custody and guardianship of a child on the basis of the custodial parent’s intransigent conduct in alienating the child from the non-custodial parent, the immediate detrimental impact on the child of a court-ordered change of custody may be outweighed by the long-term detrimental impact that will be suffered by the child if the parental alienation continues unabated.227Subsections 16(9) and 17(6) of the Divorce Act will not eliminate acrimonious custody or access litigation unless lawyers and parents jointly pursue other avenues for resolving parenting disputes on or after divorce. The strategic use of mediation and court-ordered independent custody assessments can reduce the potential for protracted no-holds-barred litigation.

2) Child Sexual Abuse Allegations

In contested custody or access proceedings, a parent who alleges that the other parent has sexually abused their child has the burden of proving the allegation on the balance of probabilities. If the evidence clearly establishes sexual abuse, such conduct will usually be determinative of future parenting arrangements. If the evidence leaves it uncertain whether sexual abuse occurred in the past, the court must still go on to assess the risk of future abuse.

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As was stated by Green J, of the Newfoundland Unified Family Court, in CC v LB,228"the issue in a custody and access case where sexual abuse is alleged is not whether abuse did occur in the past but whether there is a real risk to the child in the future and, if so, whether that factor, when weighed against all the other factors bearing upon the best interests of the children, mandates a particular result." Hearsay evidence respecting statements made by young children may be admitted where sexual abuse is alleged in a custody or access dispute, provided that such evidence satisfies the criteria of necessity and reliability set out in R v Khan.229In the words of Fisher J, of the British Columbia Supreme Court, in DAM v DMT:

23 In a family law case involving allegations of physical and sexual abuse against children, hearsay evidence of statements made by the children may be admitted under the principled exception to the hearsay rule. This exception requires that the evidence is both necessary and reliable. Children do not normally testify in proceedings of this nature, particularly young children, as to do so may be very harmful to them. For this reason, the hearsay evidence meets the necessity requirement: see J.K.F. v. J.D.F., [1988] B.C.J. No. 278 (C.A.); R. v Khan, [1990] 2 S.C.R. 531; S.F.R. v. E.C.R. (1997), 41 B.C.L.R. (3d) 239 (S.C.); P.V. v. D.B., 2007 BCSC 237; and J.P. v. B.G., 2012 BCSC 938.

24 Reliability for the purpose of admissibility, or threshold reliability, is aimed at identifying circumstances where the inability to test the hearsay evidence is sufficiently overcome to justify receiving it as an exception to the general exclusionary rule. This requirement may be met by showing that sufficient trust can be put in the truth and accuracy of the statement because of the way in which it came about, or by showing that in the circumstances the judge will be able to sufficiently assess its worth. The presence of corroborating or conflicting evidence may also be considered: see R. v. Khan; R. v. Khelawon, [2006] 2 S.C.R. 787.

25 In S.F.R., the indicia of reliability in cases involving allegations of sexual abuse were held to include the following factors: timing of the statement; demeanour and personality of the child; intelligence and understanding of the child; absence of motive of the child to fabricate; absence of motive or bias of the person who reports the child’s statement; spontaneity; statement in response to non-leading questions; absence of suggestion, manipulation, coaching, undue influence or improper influence; corroboration by

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