Court of Appeal for Ontario
Date: July 20, 2017
Docket: C62353 & C62362
Judges: Sharpe, Lauwers and Miller JJ.A.
C62353
Between
Shirley Diane Duff Applicant (Respondent in appeal)
and
Mark Alexander James Respondent (Respondent in appeal)
and
Ontario Provincial Police Third Party Respondent (Respondent in appeal)
and
Waterloo Regional Police Service Third Party Respondent (Appellant)
C62362
And Between
Shirley Diane Duff Applicant (Respondent in appeal)
and
Mark Alexander James Respondent (Respondent in appeal)
and
Ontario Provincial Police Third Party Respondent (Appellant)
and
Waterloo Regional Police Service Third Party Respondent (Respondent in appeal)
Counsel
Virginia Torrance, for the appellant/respondent, Waterloo Regional Police Service
Christopher Diana and Lynn Donnelly, for the appellant/respondent, Ontario Provincial Police
No one appearing for the respondents, Shirley Diane Duff and Mark Alexander James
Sean Dewart and Michelle Thomarat, appearing as amicus curiae
Heard: June 27, 2017
On appeal from the order of Justice D.J. Gordon of the Superior Court of Justice, dated June 7, 2016.
B.W. Miller J.A.:
Overview
[1] These two appeals concern the scope of a judge's jurisdiction under s. 36(2) of the Children's Law Reform Act, R.S.O. 1990, c. C. 12, to direct a police force 'having jurisdiction in any area where it appears to the court that the child may be' to enforce a child custody and access order. As I explain below, I conclude that, in the circumstances of this case, the motion judge made no reversible error in ordering the Ontario Provincial Police (OPP) to enforce the child access order in place of the Waterloo Regional Police Service (WRPS), and I would dismiss the appeals.
Background
[2] The order that is the subject of these appeals arose out of a high conflict custody dispute between a father and mother concerning the youngest child of the marriage. The appellants take no issue with the motion judge's determination that police assistance was required to enforce the terms of the custody and access order. However, the motion judge found that the police force that would ordinarily be called upon to enforce the order, the WRPS, had an inherent conflict of interest and therefore was not able to assist. The nature of the conflict of interest was that the father was a member of the WRPS, and the mother had brought allegations that the WRPS had on several occasions inappropriately intervened in the custody dispute to further the father's interests.
[3] In 2015, the mother brought a contempt motion following the father's failure to deliver the child to her custody. The motion judge found that officers of the WRPS had interfered with the exchange of the child from the father to the mother, and had effectively prevented the mother from exercising custody. The motion judge's order, which was dated November 6, 2015, granted various remedies including the following police assistance provision:
This Court orders, pursuant to Section 36 of the Children's Law Reform Act, that the Ontario Provincial Police, having jurisdiction where the said child may be found, is hereby directed to locate, apprehend and deliver the child to the parent entitled to custody or access in accordance with this Order, which direction shall remain in effect until further order of this Court.
[4] Thereafter, the parties respected the custody and access schedule and neither had need to resort to the OPP for assistance.
[5] On April 28, 2016, the OPP brought a motion to vary the police assistance provision in the order, so that the OPP would no longer be the police service designated. It was supported in this by the WRPS.
[6] The motion judge refused to vary the order. His reasons set out the basis for the police assistance provision of the November 6, 2015 order: that although the WRPS is the presumptive police force to enforce a s. 36 order by virtue of sections 4 and 5 of the Police Services Act, R.S.O. 1990, c. P. 15, the WRPS, because of its inherent conflict of interest, had failed to provide police services for the family, particularly the child.
[7] The motion judge noted that the Police Services Act allows for agreements among regional police forces, as well as the OPP, to outsource investigations where there is a conflict of interest. He noted, however, that there is no express provision providing for outside assistance where needed to enforce custody or access. The motion judge held that where the best interests of a child are at stake, and where there is a legislative gap, the court has parens patriae jurisdiction to craft a remedy. Accordingly, the motion judge had ordered the OPP to provide the needed assistance.
[8] The OPP and WRPS each appeal from the order dated June 7, 2016 dismissing the motion to vary. The original parties did not participate in this appeal, and the OPP agreed to fund amicus so that the Court could have the benefit of argument on both sides of the appeals.
Analysis
[9] The OPP argues that the motion judge had no authority to impose on the OPP an obligation to enforce the police assistance provision. The choice of whether to use a municipal police service or the OPP, the appellants argue, is to be determined by each municipality as a matter of democratic governance. Further, it is the Ontario Civilian Police Commission (OCPC), and not the Superior Court, the appellants argue, that is assigned supervisory jurisdiction and can determine that a municipal police force has failed to provide adequate or effective policing and, in such circumstances, can request the OPP to assist, per s. 9(2) of the Police Services Act. The appellants argue that the motion judge had no authority to make the order, and in doing so usurped the jurisdiction of the OCPC.
[10] I do not agree with these submissions. The powers conferred on the OCPC by the Police Services Act do not contemplate the OCPC dealing with or remedying the kind of case-specific problem posed by this case. Given the nature of the OCPC's statutory powers, it is unrealistic to think that the OCPC could have effectively managed the need for police assistance in this case.
[11] In my view, the motion judge's order was authorized by the plain language of s. 36(2) of the Children's Law Reform Act:
Where a court is satisfied upon application that there are reasonable and probable grounds for believing,
(a) that any person is unlawfully withholding a child from a person entitled to custody of or access to the child;
the court by order may direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order.
[12] The policing arrangements in place for the Waterloo Region make the WRPS primarily responsible for dealing with s. 36(2) orders. However, the OPP is also a police force having "jurisdiction to maintain the peace and enforce the laws" in Waterloo Region: Foster v. ADT Security Services Canada Inc., 2007 ONCA 653 at para. 3. Section 36(2) is not premised on there being a single police force with exclusive jurisdiction in any territory. The Police Services Act provides for overlapping and concurrent responsibilities within the same territory.
[13] In ordinary circumstances, a judge making an order under s. 36(2) will not need to designate a police force. The order should be made in the terms of the statute so that the municipal police force in whatever region the child in question happens to be at the time is authorized to act. Indeed, to ensure that s. 36 orders can be enforced if the child is moved from place to place, it is preferable not to specify a specific police force. However, in an exceptional circumstance such as this, where the municipal police force where the child is residing is not able to act, s. 36(2) permits a judge to specify that the OPP assist.
[14] The motion judge also relied on parens patriae jurisdiction as a possible basis for the order he made. In my view, the power conferred by s. 36(2) is broad enough to permit a judge to order assistance from any police force, including the OPP, that has jurisdiction in a given area. Accordingly, as I see no legislative gap, it is not necessary to address the issue of parens patriae.
[15] That is sufficient to dispose of the appeals. However, the appellants raise one further issue that should be addressed. By specifying that the OPP is the police force "having jurisdiction where the said child may be found", the November 16, 2015 order extends the involvement of the OPP further than necessary. Should the child happen to be in another region, outside the territory of the WRPS, there is no reason why the OPP should be preferred over the municipal force in that region. Although the order has now expired and the appeal is moot, I note that it would have been preferable for the order to have provided that the OPP would only be required to provide assistance if the child was to be found within the region policed by the WRPS.
[16] Additionally, it should be noted that s. 36(2) orders should specify an expiry date in compliance with s. 36(7).
Disposition
[17] I would dismiss the appeal and make no order as to costs.
Released: July 20, 2017
"B.W. Miller J.A."
"I agree. Robert J. Sharpe J.A."
"I agree. P. Lauwers J.A."