Uttering threats allegations and its impact on Family Court.

[wretchedotis]

Depending on the circumstance, I would openly show the recorder, state that I record everything now to protect myself, and please keep away from me, OH MY GOD PUT THE KNIFE DOWN!!!! ARE YOU CRAZY?!!!!!

Too Funny

 

[wretchedotis]

Here is something I don't understand. Wretchedotis, as well as a few other threads I have read say "Charged for FALSE threats or false allegations". How can you get charged for it? So anyone can call the cops or go file charges for uttering threats or something and the person gets charged? What about proving it? From some threads I read it goes like this "my ex threatened to do this and that and the ex is automatically charged"? What happens if the lying party is proven to be lying about the threats?

I don't understand.

The cops receive a call, and in interview of the complaintant says "he threatened me". That is enough for the police to charge you. It is then up to the court system to determine guilt. This is why I am going to trial.
You're quite right in the underlying reasoning, however. It is a he said - she said thing. So how can it be proved as having occured beyond a reasonable doubt?

Thats the very logic I am going to trial on.

**Added

I have looked into what recourse I may have should I be acquitted. And it is possible to attempt to recover my costs and perhaps punitive damages in civil court. The trick here is that you have to prove that the complaintant willingly and purposefully made false claims. I imagine that would be difficult to prove, as you're trying to prove someones state of mind?

The one saving grace of civil court is that it must only be proven to a "probably occured" standard vs a "beyond reasonble doubt" standard.

 

[wretchedotis]

He plead guilty in exchange for a conditional discharge.

....He felt that he would not have a criminal record if it was discharged--but it still counts as a conviction. Now is the time to "waste money on lawyers". Besides, who says the judge may not order a conditional discharge even if you are found guilty?

I don't have a clear understanding of this.
Can you please explain the significance of the "conviction" part?
Does that mean no travel to the States, etc?

I assume I would face the same thing if I were to settle...

 

[iceberg]

Civil court? Is this matter for civil or criminal court? If they judge accusations by "probably occurred" then the victim (wrongfully accused person) has an uphill battle.

 

[Tayken]

My current husband was charged with criminal harassment after taping phone calls to find out definitively if his wife (now ex) was having an affair.

Was this in Canada? It is my understanding that it only requires one consenting adult to record a conversation. Unless the recordings your husband took were wire taps where he wasn't a part of the conversation then this would constitute an illegal wire tap.

"Proving" someone has had an extramarital affair really isn't a consideration in Family Law anymore. Adults are allowed to have adult relationships even when married. Extramarital affairs hold no weight in the best interests of the children unless the parent is doing inappropriate things in front of their children.

He took the kids to an event, came home to find her in bed with the bf.

Did the children see this event? This may have some weight on the situation but, unless they saw something inappropriate it doesn't.

She grabbed the kids, refused to leave the house and called police saying she was afraid for her life. Angry words were exchanged but no death threats. He plead guilty in exchange for a conditional discharge.

The matrimonial home is a joint asset and until such time that a court orders otherwise she has as much right to residing there as he did at the time. If she wanted to have sex with another person in her home, although it may sound weird and strange, she had every right to.

"Fear" is the common term used to get police to arrest someone in these situations. Fear is an anxiety and many police need much more training on the concept of anxiety. Often police arrest parents because of the use of the word "fear". If there were no prior incidents of police involvement there should have been no arrest. My opinion is that "fear" is an assumption of future harm. You can't arrest someone for something someone believes is going to happen.

Now, there is no description of the "words" that were exchanged. This may be the reason your husband was arrested at that time.

Five years later, we are in family court suing for custody and this issue continues to be a problem..because it involves the family, not a stranger. Our lawyer told us that the judge will take this conviction into consideration, that it directly affects my husband's credibility. This is crap-- we are very open and honest people and the other party lies through her teeth.

If there have been no resulting events requiring the involvment of the police the weight of this incident 5 years ago should not be too heavy in the judge's decision. What a judge wants to hear about is what happened and how your husband has improved since the incident and specifically why he should be involved in their children's life more as a result. Specifically a change of circumstance.

I wish every time this comes up that my husband had fought these charges at the time. He felt that he would not have a criminal record if it was discharged--but it still counts as a conviction. Now is the time to "waste money on lawyers".

The challenge in a domestic dispute facing officers is preventing an incident. How your husband behaved and acted at the time of the incident was the factor for which the charges were laid. If you lose your cool in front of the police it only adds fuel to the fire. It is difficult for any parent to remain calm. The fear of going to jail, especially for people who have no contact with the criminal justice system, is overwhelming at times.

The best case is to say nothing to the police and get a criminal defence lawyer immediately.

Besides, who says the judge may not order a conditional discharge even if you are found guilty?

I don't really understand what you mean here with regards to this statement. Could you clarify what you mean?

Good Luck!
Tayken

 

[Tayken]

The way it works is that the job of the police is to collect information and pass it on to the crown attorney, who is mandated by the Ontario gov't to basically follow through no matter what. Even if they have some doubts at to the validity.

Actually, it is the responsibility of the police to maintain peace and order. That is why they are "peace officers". If any party to the call represents themselves in a way that may disrupt the peace could face a criminal charge. How you behave at the time of the incident is critical to if you get charged. If you don't give an officer a reason to arrest you they can't. Scream and yell, act up... They will.

The police don't care if you have done it or not... the charge being laid gets it off their plates and they don't have to field another half dozen calls from your ex.

I disagree. I think the problem is that police responding to domestic disputes are not trained often in these matters. They have very little training in domestic situations so they apply general law enforcement rules. If you are a man whom the accusation is being made against. Request a female police officer to deal with the situation. They generally have a better and more rational approach to domestic situations. Male officers have an underlying psychology driving them often of "protecting the weak". Where female officers tend to have a more broader view of "protecting the children" that can often involve insuring that parents are not wrongfully removed from their children's lives. (I have no backing evidence to this statement - it is my opinion.)

The crown proceeds without caring if you did it or not, because for them to fulfill their mandate with the gov't, they have to proceed.

This is a bold statement. The crown's responsibility is to bring matters to justice. You may not be happy with the process but, it isn't all about the person being charged. It is also about the victim of the suspected crime and protecting the public at large.

This is done through the proper application of the law through trial unfortunately.

Most either plead guilty or take a peace bond without a record. Problem solved from police and crown perspective, but absolutely no justice is done.

If you are innocent of the crime why would you plead guilty or take a peace bond? It is unfortunate that men feel they must do this to resolve matters. It is unfortunate.

If everyone who was falsely accused pushed forward to trial, perhaps we would see some changes due to the backlogs...

More importantly, men need to start reporting the domestic violence that happens to them. Statistically speaking it is almost 50-50 on the statistics now. (Statscan) The problem is that men don't seek help in these situations therefor the domestic violence industry doesn't feel men need help. Domestic violence is just that. Domestic violence. It happens to men and to women.

Furthermore, if the people found innocent at trial pushed for changes in how law enforcement is trained, openly talked about the emotional and psychological impact of false allegations of domestic violence had on them the system could improve for families everywhere. Until the falsely accused don't stand up and make some noise... It will be the status quo.

"False allegations of domestic violence *is* abuse."

but the reality is, we are so tired of fighting by then (and are out of $), that the peace bond looks like not such a bad option. Your ex wins. The police and crown are indifferent.

You do identify a significant challenge with this all. Costs. A person is free to make a false allegation and have the government fight on their behalf. I strongly feel that if a finding of not guilty is made in an allegation of domestic violence the accusing party should face the same charges should the allegation have been true. This would cut down on some of the tactics used in separation and divorce proceedings.

And yes, I am cynical... I have been through it and my eyes are wide open now.

It is a financial drain to have to deal with this. So it isn't hard for many people to understand why you are cynical. Hopefully you are seeking the proper support for dealing with potential false allegations of domestic violence. Many people don't consider the incredibly damaging impact they can have on one's psychology.

Good Luck!
Tayken

 

[Tayken]

might I ask a simple question. i was given what really sounds like the advice of the century - to get a personal recorder to record ALL interactions with your ex pending this crap happening to me. I have been peiecing things together and I was on the page of "am I being paranoid on the road to yet another "mental breakdown".

So here goes - zero experience with these recorder things - i gave it thought today and i only came up with a senerio of, "hold it a sec while i reach in my pocket and figure out how to get this thing recording....... ok i am ready!" Ok sounds like I am a tad not with it - but is there some kind of setup that is easy to get it started and get the job done?

Next would be the file - say 20 fringe recordings that start a pattern and should the unimaginable start - at least there would be that recording and the twenty before that might help one's defense. Next is the recording itself - is there a kind of recording that is digital at the getgo and then it could be easily transfered to the computer. While I am at it the last would be recommendations on a type (brand) where I can get it (store)? Is there anything I would have to do so this recording interactions is legal and I won't get into trouble just for recording in the first place?

Hi,

The recordings have very little value in family court unless you are using them to remember things said on specific dates and are going to transcribe them into an affidavit.

The only other purpose for a recording is should the other party make an allegation domestic violence you have the recordings on hand for the police which helps.

General reason why recordings are not admissible:

a. Husband calls wife with recorder off and says something rude, mean and nasty to upset the wife.

b. Husband calls wife to discuss something about their children in one minute while the wife is still upset. Wife gets upset and yells at the husband whom is just acting like nothing happened.

No judge knows what happened to lead up to the incident. A high conflict person can create all sorts of really great evidence this way and it has been done before too many times.

With regards to your anxiety about the recording. Might I suggest that you talk to your family practitioner about your anxiety. Often times people going through separation and divorce have adjustment issues. Do not let your anxieties overwhelm you. It won't serve you well during these matters.

Good Luck!
Tayken

 

[Tayken]

I have looked into what recourse I may have should I be acquitted. And it is possible to attempt to recover my costs and perhaps punitive damages in civil court. The trick here is that you have to prove that the complaintant willingly and purposefully made false claims. I imagine that would be difficult to prove, as you're trying to prove someones state of mind?

It is very risky and very expensive should you fail in civil court on this matter. 2004-2010 and no result all the same file:

CanLII - 2004 CanLII 66278 (ON SC)

CanLII - 2005 CanLII 3934 (ON CA)

CanLII - 2009 CanLII 19934 (ON SC)

CanLII - 2009 CanLII 27831 (ON SC)

CanLII - 2010 ONSC 6317 (CanLII)

The one saving grace of civil court is that it must only be proven to a "probably occurred" standard vs a "beyond reasonable doubt" standard.

I highly recommend you read the above decisions from start to finish to see how something like you are considering goes. Also, take close note to the awarding of costs in this matter. Keep a running total against the application and respondent in the matter. Is it really worth it? The burden of evidence is high.

Good Luck!
Tayken

 

[iceberg]

I did some research on this subject and yes, uttering threats are a serious offence and very punishable. That's good because no one should live in fear of others.

But when it comes to false accusation I get confused. If the victim (accused) denies any threats, The prosecutor should prove the threats were made "beyond any reasonable doubt" or "probably occured"?

Also is poligraph admissible?

Easier said than probably done but if it happened to me, I could never admit something I have not done.

 

[formyGirls]

Iceberg,

In regards to the seriousness of the uttering threats charge, I agree they are a serious offence. But if one is deciding whether to take the risk of fighting the charge or not, here are a few things to look at.

1. How is the crown proceeding, summarily (with only a judge) or by indictment (with a jury)? Generally this charge is handled summarily, in which case a conviction posed much less of a sentence than if by indictment, and the crown considers it less serious than if they proceeded by indictment. The crown elects how to proceed, and it is indicated on the screening form they include with the disclosure package.

2. Any previous record? The crown will take a much more determined stance in prosecuting if there is a conviction OR accusations against you. They can't generally use these past convictions as evidence in court, but they can later if it comes to sentencing. I have sat through a number of hours of sentencing in court, watching other cases lately. Generally if the person has no record, there is a much stronger chance of a conditional discharge even on conviction.

3. Does the "victim" have provable reason to be afraid of you, that the crown has introduced through disclosure and could be shown to the judge? I have been told this can sway the judge's opinion a lot, and if it comes down to he said she said, you could lose the balance.

The crown has to prove BEYOND a reasonable doubt. That means if a judge is SURE you have done it, they must convict. If they aren't certain, they MUST acquit, as obviously they must if they don't think you have done it. Criminal law, thank goodness, does not revolve around a balance of probabilities.

Polygraphs are not admissible. I offered to take one after my arrest, but police didn't want anything to do with it. Not like the old days of tv, lol!

I am going through an uttering threats charge myself right now. I am part way through my trial, and representing myself. BE CAREFUL with lawyers when you are dealing with these matters, especially if there are ties to family court. I had hired a criminal lawyer who was quick to try to convince me to take a conditional discharge, and all I had to do was take a PARS course on spousal abuse. There was absolutely no advice or disclaimer about the possible implications in family court. I wouldn't have to admit anything, but it is fodder for the family court and my ex.... and that's the last thing any of us need while going through all this. Don't ever admit to doing anything you haven't.

Good luck!