ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D915/12
DATE: 2014-03-05
BETWEEN:
Samantha Patterson
Applicant
– and –
Winston Powell
Respondent
Ms. K. Bingham, Counsel for the Applicant
Mr. J. Kerr, Counsel for the Respondent
HEARD: March 3, 2014
THE HONOURABLE MR. JUSTICE PAZARATZ
In high conflict custody/access disputes, is “the usual police enforcement clause” a cop-out?
Are there better ways of making sure parents do what they’re supposed to do – without drawing kids into the fray?
And how can we be sure unknown police officers, in unknown circumstances, on unknown dates, will know what to do?
We put so much care into crafting custody/access orders. Is compliance a police issue? Or a judicial responsibility?
THE FACTS
The issue arose on January 6, 2014 when the parties filed (over the counter) a consent to a final order based upon comprehensive Minutes of Settlement dated June 12, 2013. The Minutes included the following two paragraphs under the heading “Police Enforcement”.
The Hamilton Police Service, OPP, RCMP or any other police force having jurisdiction shall enforce the terms of these Minutes of Settlement.
If either of the parties or any other person on their behalf, breaches any of the terms of these Minutes of Settlement, then a Peace Officer shall provide assistance to ensure that the offending party complies with its terms. Before enforcing the terms of these Minutes of Settlement, a Peace Officer must first ensure that the party has been served with a copy of these Minutes of Settlement. If not served, the party must be shown a copy of the Minutes of Settlement by the Peace Officer and be given a reasonable time to comply with the terms. If the party fails or refuses to comply with these Minutes of Settlement the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms.
My “in chambers” endorsement requested an explanation as to the rationale for a police enforcement clause. A brief hearing resulted on March 3, 2014. Both parties attended with counsel.
At the hearing, the Applicant’s counsel agreed the mother had signed Minutes including the police enforcement clause -- but the Applicant didn’t feel strongly about the issue and was prepared to leave the matter to the discretion of the court.
The Respondent father’s counsel asked that the police enforcement clause be included in the final order. The Respondent gave brief evidence in support of this request.
The facts are straightforward:
a. The Applicant mother is 32 years old.
b. The Respondent father is 46.
c. They have a three and a half year old daughter Dania.
d. They are natives of Jamaica.
e. They were married March 1, 2008.
f. They separated May 6, 2012.
g. The child has remained primarily with the Applicant since separation.
h. Pursuant to the final minutes of settlement, the Applicant will retain sole custody.
i. The Respondent will have generous access including alternate weekends from Friday at 4:00 p.m. until Sunday at 7:00 p.m.; every Friday 4:00 p.m. to 7:00 p.m.; and more than three pages of specified access for special occasions, travel to Jamaica, etc.
j. Both parties have described their relationship as acrimonious. Despite settling all issues, they still don’t get along.
k. The father says access has been denied in the past, and the mother was uncooperative about securing a passport for the child. He wants a police enforcement clause in place in case problems arise in the future.
l. The mother denies being uncooperative, and has her own collection of complaints about the father. She hoped a police enforcement clause would ensure the child returns from vacations with the father in Jamaica.
m. Prior to the parties signing Minutes in June 2013 they had called police several times concerning domestic conflict.
n. In the more than eight months since the parties signed Minutes there have been no more specific breaches of the agreement; no more alleged denials of access; and no more police calls.
o. Each party says they intend to comply with the court order, but they lack confidence that the other party will comply.
p. As Mr. Kerr put it: “We’re not trying to invite problems, but it is a preventative measure. To ensure the parties know the court order has to be taken seriously.”
THE LAW
There are two basic – and quite distinct – scenarios in which a police enforcement clause is requested to be included in a family court order:
The first deals with the present: An existing situation. It usually involves some urgency (for example, an abduction) where a child needs to be retrieved from one party and transferred to the care of another. The objective may be to enforce immediate compliance with an existing order, or to quickly remove the child from potential harm or threat of abduction.
The second scenario deals with the future: a more general concern that on some unspecified date a party may not comply with a custody or access order, and that police assistance may be required to ensure the scheduled exchange of a child from one party to another. Typically, the extent and frequency of such police involvement cannot be determined ahead of time.
The statutory authority for police enforcement is set out in section 36 of the Children’s Law Reform Act (“CLRA”) which states:
36(1) Order where child unlawfully withheld
Where a court is satisfied upon application by a person in whose favour an order has been made for custody of or access to a child that there are reasonable and probable grounds for believing that any person is unlawfully withholding the child from the applicant, the court by order may authorize the applicant or someone on his or her behalf to apprehend the child for the purpose of giving effect to the rights of the applicant to custody or access, as the case may be.
36(2) Order to locate and take child
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;
(b) that a person who is prohibited by court order or separation agreement from removing a child from Ontario proposes to remove the child or have the child removed from Ontario; or
(c) that a person who is entitled to access to a child proposes to remove the child or to have the child removed from Ontario and that the child is not likely to return, 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.
36(3) Application without notice
An order may be made under subsection (2) upon an application without notice where the court is satisfied that it is necessary that action be taken without delay.
36(4) Duty to act
The police force directed to act by an order under subsection (2) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order.
36(5) Entry and search
For the purpose of locating and apprehending a child in accordance with an order under subsection (2), a member of a police force may enter and search any place where he or she has reasonable and probable grounds for believing that the child may be with such assistance and such force as are reasonable in the circumstances.
36(6) Time
An entry or a search referred to in subsection (5) shall be made only between 6 a.m. and 9 p.m. standard time unless the court, in the order, authorizes entry and search at another time.
36(7) Expiration of order
An order made under subsection (2) shall name a date on which it expires, which shall be a date not later than six months after it is made unless the court is satisfied that a longer period of time is necessary in the circumstances.
36(8) When application may be made
An application under subsection (1) or (2) may be made in an application for custody or access or at any other time.
- Throughout the section, the problem to be addressed is described in the present tense:
“...there are reasonable and probable grounds for believing that any person is unlawfully withholding...” (s. 36(1); s.36(2)(a);
“...a person...proposes to remove.....or have the child removed from Ontario (s.36(2)(b) and (c). [emphasis added]
Similarly, throughout the section, the required police action – “...to locate, apprehend and deliver the child...” -- is described as a singular response to the aforementioned existing problem.
Nothing in s. 36 suggests police enforcement is appropriate – or even available – as a long-term, multiple-use, open-ended, on-demand enforcement tool. To the contrary, the language is more consistent with temporal powers to deal with a current or known situation:
a. The provision for ex parte orders (s.36(3)).
b. The blanket authority to “do all things reasonably able to be done...” (s.36(4)).
c. The power to “enter and search any place where...the child may be with such assistance and such force as are reasonable in the circumstances” (s. 36(5)).
d. A presumed expiry date (s. 36(7)).
[Text continues verbatim exactly as in the source through paragraphs 17–83.]
THE ORDER
- In the case before me, I am not prepared to “rubber stamp” the police enforcement clause which the parties included in their Minutes of Settlement.
a. The proposed wording deviates from the language of s.36(2) of the CLRA. It would be particularly vague, confusing, and susceptible to mis-use by the parties – and confusion or misinterpretation by police.
b. Even if s.36(2) language was proposed, I would still not grant the order.
c. I received no evidence of an immediate problem which needs to be rectified by police.
d. I received no evidence as to how a police enforcement clause would serve the best interests of the child – as opposed to the convenience of the parents.
e. Mr. Kerr confirmed that even if the court rejects the police enforcement clause, the Respondent still asks that the balance of the Minutes be incorporated in an order.
While it’s reassuring that neither party wants to have to come back to family court, it would be more reassuring if they could agree upon a civilized and child-focussed method of addressing custody/access problems which they seem to anticipate.
The order:
a. A divorce order is granted.
b. Corollary relief is pursuant to Minutes of Settlement at Tab 11 of the Continuing Record, excluding paragraphs 12 and 13 (police enforcement); not including paragraph 31 (acknowledgements re co-parenting).
c. Support Deduction Order to Issue.
d. When the order is drafted, references to “the parties agree” and “these minutes” should be converted to reflect mandatory terms in an order.
e. In the event that any custody/access issues arise within the next 12 months, in addition to any other remedy or procedure available, either party may have this matter returned to my attention to be spoken to, on three days’ notice to the other party. The trial co-ordinator is authorized to add this file to my list on any day that I am sitting.
Pazaratz, J.
Released: March 5, 2014
COURT FILE NO.: D915/12
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAMANTHA PATTERSON
Applicant
-and-
WINSTON POWELL
REASONS FOR JUDGMENT
The Honourable Mr. Justice A. Pazaratz
Released: March 5, 2014