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Domestic Violence Dealing with abuse and violence. Getting support and help.

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  #1 (permalink)  
Old 07-19-2013, 03:49 AM
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Default Remedy for victims of false allegations of DV?

Some time ago tayken had posted a link (below) detailing what happens to Tort cases in family law situations. all cases listed in the document were dismissed which included people who sued for false allegations of DV

http://www.macdonaldpartners.com/art...t_Remedies.pdf

another aspect of that is seeking remedy from the police force/officers who laid the false charges in the first place and from the crown who decided to proceed on the charges. i found this interesting study http://www.blaney.com/sites/default/...-Negligent.pdf that lists exactly what happens when you try to seek such remedy.

the paper details how supreme court of canada has started to refuse majority of the claims of malicious prosecution against the crown. similarly negligence claims get thrown out on basis that there is no standard of care a cop should have used while laying charges.

the summary I conclude is that while the law does permit to seek remedy for false allegations, the law is also designed in such a fashion that almost all cases such attempts will fail.

bottom line is that canadian justice system stands firmly behind the false accuser and nails the victim of false accusations as hard as legally possible. if the accused is somehow proven innocent and seeks remedy he is further nailed for seeking remedy.
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Old 07-19-2013, 09:29 AM
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Quote:
Originally Posted by sahibjee View Post
Some time ago tayken had posted a link (below) detailing what happens to Tort cases in family law situations. all cases listed in the document were dismissed which included people who sued for false allegations of DV

http://www.macdonaldpartners.com/art...t_Remedies.pdf

another aspect of that is seeking remedy from the police force/officers who laid the false charges in the first place and from the crown who decided to proceed on the charges. i found this interesting study http://www.blaney.com/sites/default/...-Negligent.pdf that lists exactly what happens when you try to seek such remedy.

the paper details how supreme court of canada has started to refuse majority of the claims of malicious prosecution against the crown. similarly negligence claims get thrown out on basis that there is no standard of care a cop should have used while laying charges.

the summary I conclude is that while the law does permit to seek remedy for false allegations, the law is also designed in such a fashion that almost all cases such attempts will fail.

bottom line is that canadian justice system stands firmly behind the false accuser and nails the victim of false accusations as hard as legally possible. if the accused is somehow proven innocent and seeks remedy he is further nailed for seeking remedy.
Its really really simple.

The presumption of innocence until proven guilty also applies to the police and the crown. If you read the article, you will see that one of the necessary conditions is to prove there was malice, not just that the accusations were false and without cause. Malice is generally in someone's head and without corroroborating evidence (emails, letters etc., that demonstrate malice), chances of a successful prosecution don't exist.

It isn't enough to prove that the charges were without merit. You have to prove malicious intent, which is not easily done.
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Old 07-19-2013, 11:26 AM
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the problems is that even when there is negligence the cases are thrown out. i.e. in practicality the cops are being allowed to be negligent. how often will we allow any other professional to be negligent specially when their actions can wreck some ones life?

the bottom line is that a victim of false allegations of DV has no actual remedy available to him
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Old 07-19-2013, 11:34 AM
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Originally Posted by sahibjee View Post
the problems is that even when there is negligence the cases are thrown out. i.e. in practicality the cops are being allowed to be negligent. how often will we allow any other professional to be negligent specially when their actions can wreck some ones life?

the bottom line is that a victim of false allegations of DV has no actual remedy available to him
Negligence is not Malice. If the police officer was told by a witness that abuse happened, and believes it, then their actions after that point are not necessarily malicious even if negligence is involved. Malice would involve ignoring or suppressing contrary evidence, or creating evidence that didn't exist. Failing to do a thorough job in exploring evidence that may exonerate the accused is not necessarily malice, unless you can prove that was the rationale, and as stated above pretty hard to do that without a smoknig gun.
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Old 07-19-2013, 03:23 PM
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I think you should be looking at holding the accuser responsible, not the police. The police are just doing their job, and usually would prefer to err on the side of caution by charging someone rather than letting an actual incident go without charges being laid.

It's not easy to hold the accuser responsible, granted.

Should further base-less accusations be made, insist the accuser be charge with Mischief. (I think it's Mischief) for knowingly making a false report.

I've been accused of several things and faced several charges over the past 4 years or so, and there's not really much you can do.

Accusations of violence must be taken very seriously, as they should be.
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Old 08-02-2013, 12:57 AM
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Originally Posted by wretchedotis View Post
I think you should be looking at holding the accuser responsible, not the police. The police are just doing their job, and usually would prefer to err on the side of caution by charging someone rather than letting an actual incident go without charges being laid.

It's not easy to hold the accuser responsible, granted.

Should further base-less accusations be made, insist the accuser be charge with Mischief. (I think it's Mischief) for knowingly making a false report.

I've been accused of several things and faced several charges over the past 4 years or so, and there's not really much you can do.

Accusations of violence must be taken very seriously, as they should be.
yes, perhaps you can insist of mischief charge to be laid, and even if its laid. it will be mischief charge vs a way more serious i.e. sexual assault charge.

suppose she does get convicted of mischief and goes to jail for two weeks. after 5 years she can still have all her records expunged including criminal records & police records after another couple of years clean slate.

on the contrary you were charged with sexual assault and not proven guilty. no criminal record indeed. but the police record will for ever be there as its a "Primary Designated Offense" and cannot be removed from police record. this means at every traffic violation the police can see on their computer that they had arrested you previously for a serious offense.
bottom line she still won! long live the canadian justice system.
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Old 08-02-2013, 12:58 AM
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Originally Posted by DowntroddenDad View Post
Negligence is not Malice. If the police officer was told by a witness that abuse happened, and believes it, then their actions after that point are not necessarily malicious even if negligence is involved. Malice would involve ignoring or suppressing contrary evidence, or creating evidence that didn't exist. Failing to do a thorough job in exploring evidence that may exonerate the accused is not necessarily malice, unless you can prove that was the rationale, and as stated above pretty hard to do that without a smoknig gun.
I agree negligence is not malice. but negligence must be accounted for just as malice is. this kind of negligence recks some one's life. the consequences are for ever there for the victim.
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Old 08-06-2013, 09:13 AM
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Originally Posted by sahibjee View Post
I agree negligence is not malice. but negligence must be accounted for just as malice is. this kind of negligence recks some one's life. the consequences are for ever there for the victim.
Not at all suggesting negligence should be tolerated, but it cannot be prosecuted under malicious prosecution. It all hinges on intent.
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Old 08-06-2013, 11:27 AM
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Lawrence v. Peel Regional Police Force, 2004 CanLII 66278 (ON SC)
Date: 2004-05-19
Docket: 03-CV-255317SR
URL: CanLII - 2004 CanLII 66278 (ON SC)
Citation: Lawrence v. Peel Regional Police Force, 2004 CanLII 66278 (ON SC)

Lawrence v. Peel Regional Police Force, 2009 CanLII 19934 (ON SC)
Date: 2009-04-16
Docket: 03-CV-255317 SR
URL: CanLII - 2009 CanLII 19934 (ON SC)
Citation: Lawrence v. Peel Regional Police Force, 2009 CanLII 19934 (ON SC)

Lawrence v. Peel Regional Police Force, 2010 ONSC 6317 (CanLII)
Date: 2010-11-16
Docket: 276/09
URL: CanLII - 2010 ONSC 6317 (CanLII)
Citation: Lawrence v. Peel Regional Police Force, 2010 ONSC 6317 (CanLII)

Andrew Mark Alexander Lawrence v. Peel Regional Police Force and Theresa Maclean, 2012 CanLII 11270 (SCC)
Date: 2012-03-08
Docket: 34553
URL: CanLII - 2012 CanLII 11270 (SCC)
Citation: Andrew Mark Alexander Lawrence v. Peel Regional Police Force and Theresa Maclean, 2012 CanLII 11270 (SCC)

Globe and Mail Article: http://canadacourtwatch.com/Newpaper...e%20lawyer.pdf

I would read the above case law and article prior to seeking an award against any party for false allegations / etc and the obligation on the Applicant in a proceeding to bring cogent and relevant evidence forward.

Again, I all remind everyone of Shaw V. Shaw:

Winning family battles in criminal court

Quote:
Originally Posted by Shaw v. Shaw
The events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace. These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact. Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of or access to the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access.
Quote:
Originally Posted by Shaw v. Shaw
I do not know what advice Mr. Shaw received from the unnamed lawyer whom he consulted before, as he put it, asking for charges to be laid. I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police.
The possible malice intent of people who make false allegations in the context of a family law matter may be very well to manipulate the system and establish a false status quo of children. Which is a form of "child abuse".

Many people act vindictively and strategically, to the detriment of their child/ren in family law matters. They often unilaterally terminate successful co-parenting arrangements claiming all sorts of different things. They often then filed court documents filled with horrible lies to marginalize the other parent from their child/ren's lives. They constantly seek to to perpetuate or create a fraudulently created “status quo” through lies deceptions. They will deliberately exaggerating and promoting conflict (by repeatedly calling the police, for example) because they know courts are unlikely to grant joint custody if it appears the parents can’t get along or someone has been charged criminally for "domestic violence" or "child abuse" even if the conviction hasn't been made.

Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo. (The Hounourable Mr. Justice Pazaratz)

The best thing you can do with the evidence of false allegations of abuse is to insure that the courts do not allow the other party to create a false status quo and to insure that they courts are not manipulated to abuse the child/ren.

Seeking money from the police, lawyers and the other parent is not the best option. Protecting the children from further conflict and unnecessary litigation that could expose them to abuse should be the main objective for any parent. Not monitory reward from lawyers, police and the other parent.

Good Luck!
Tayken

Last edited by Tayken; 08-06-2013 at 11:29 AM.
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Old 10-11-2014, 12:31 PM
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Originally Posted by sahibjee View Post
the problems is that even when there is negligence the cases are thrown out. i.e. in practicality the cops are being allowed to be negligent.
Law enforcement has the protection of legal authority.
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