my fiancee of 5 years left 2 years ago and we did not get back together, a few months ago she found out i was dating someone else and a few weeks later i find out im accused of molesting my 3 year old daughter. she goes for a vaginal scan today in kamloops bc. and i need to know what to do when it comes back negative because shes threatend to keep my kids from me even after the test. its been 4 and a half months since ive seen my kids and was already cleared by a doctor that my ex took her to and by bc. and alberta rcmp. i dont know what to do next.
called social services and they told me that i have to wait til the test results come back, but my ex is still threatening to keep them from me
You can apply to the court for an order that specifies the access that you will have with the children. The court will consider only what is in the best interests of the children in making such an order.
Often if there is some legitimate evidence about possible molestation, the court can still allow access, but will do so in a supervised settling. The court can view that it is better for the children to have some contact with their father and try to continue that relationship, even if it is in the artificial and constrained setting of a supervisor's office.
Sometimes if there has been a lengthy time when a parent has not seen the child, the court may order the first few visits to be shorter, or supervised, just to re-introduce the parent into the child's life in a way that is not disruptive to the child.
The supervisor can also take notes about how a parent reacts and acts to a child, and if the child is showing any signs of distress or fear of the parent. That fear may not be evidence at all that there has been any abuse and could be from the custodial parent saying who knows what to the child, but for the child it is real no matter the cause and so the court has to take it into account.
If the only evidence about molestation comes from the mother, or the mother repeating comments that she says a three year old told her, that is generally very weak. Children of that age can say many things that are not true or accurate and can be coached or manipulated easily. If this is the extent of the evidence, a court may be inclined to be cautious, but would not be likely to rule that your access rights are suspended.
Even if the RCMP actually charge you with an offence, you can make an application to the court for access. Charges are not the same as a conviction. You are to be presumed innocent. A court will still have to bear in mind the fact that charges exist as it acts only in the best interests of the children, and it is not a matter of determining what parental rights you have. Parents are presumed to be the best caregivers for their children, but that presumption can be set aside if a court finds that it is not consistent in a particular case with the best interests of the children, so parents have no automatic entitlement to be able to see their children in all circumstances. But even where a person has been charged with such an offence, courts will often allow some limited or supervised access while the charges are pending.
If you are charged, there would likely be a non-contact term put in place as part of any release conditions. But that is not binding on a judge who can make an order to allow access, as this is the superior court to where the criminal charges would be commenced.
Speaking in person with an experienced lawyer would be a very good idea in this case. This is a potentially very serious criminal charge, and the consequences if you do not resume seeing your child can last for her lifetime. You will want a lawyer experienced in criminal law, and in family law, or maybe separate lawyers to deal with each issue. We cannot give you names for lawyers through this site, but you can contact the Law Society of Alberta, which has a free lawyer referral program. You will be given names of several lawyers, each of which would give you a free initial consultation so you can learn more about this and decide if you want to hire that lawyer or not. The number is XXXXX(NNN) NNN-NNNN or(NNN) NNN-NNNNin Calgary.
I was assuming from your post you are in Alberta. If you live in B.C., there is a similar program through the B.C. branch of the Canadian Bar Association.
with over 15 years experience.