Case information

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Family law – Custody – Joint custody – Parties awarded joint custody of two children of the marriage – Mother suspecting father sexually abused daughter - What test should be applied by Courts in divorce and custody proceedings to determine risk of future harm when allegations of sexual abuse arise? – Whether courts should engage in a risk of future harm assessment, within the context of determining the best interest of children, even if past abuse has not been proven on a balance of probabilities?

The parties were married in 2002 and separated in 2007. Their two daughters are nine and six years of age and they have resided primarily with their mother since the date of separation. The mother had concerns about the father’s access because of his physical disabilities. He had lost both of his legs in a car accident in 1999. The father obtained access by court order. The mother claimed that the elder daughter manifested bizarre behaviour following visits with the father and she suspected that he had sexually abused her. The daughter was taken for counselling and the mother reported her suspicions to the Ministry of Children and Family Development. No child protection proceedings were commenced but the mother did obtain an order to have the father’s access supervised. The mother also brought a picture of a naked female figure the daughter had drawn in 2008 to various counsellors, the R.C.M.P. and the Ministry. The R.C.M.P. interviewed the daughter twice but did not recommend that any charges be brought. The daughter was also seen by a child psychologist, a clinical psychologist, an art therapist and was medically examined for signs of abuse. The daughter did not disclose any abuse until May 2009, when she told a teacher and a social worker that two and a half years earlier, her father had touched her inappropriately. The father’s access was discontinued. The mother’s action for custody, property division and support was expedited.