Court File and Parties

COURT FILE NO.: 41470-08 (02) DATE: 2016-06-07 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Shirley Diane Duff, Applicant AND: Mark Alexander James, Respondent

BEFORE: The Honourable Mr. Justice D.J. Gordon

COUNSEL: H.R. Caron, Counsel for the Applicant S. Spiegelberg, Counsel for the Respondent L. Donnelly, Counsel for Ontario Provincial Police V. Torrance, Counsel for Waterloo Regional Police

HEARD: April 28, 2016

ENDORSEMENT

[1] On November 6, 2015, as part of a temporary order pertaining to the parenting of a nine year old child, I directed the Ontario Provincial Police (“O.P.P.”), pursuant to section 36, Children’s Law Reform Act, to “locate, apprehend and deliver the child to the parent entitled to custody or access in accordance with this order”. I did so as the respondent father is a police sergeant employed by the Waterloo Regional Police Service (“W.R.P.S.”), this is a high conflict case and other officers with W.R.P.S. had previously improperly intervened to assist the father. The O.P.P. now ask that I amend that order and remove the reference to them. For the reasons that follow, I decline to do so.

Background

[2] The parties married in 1990, separated in 2007 and divorced in 2011. Four children were born to their relationship, three of whom are now adults. J.A. is now ten.

[3] The initial litigation commenced in 2008. It was high conflict then, as now. In 2011, the parties resolved the original issues and a final order was granted. It included a comprehensive shared parenting regime. The same terms were repeated in the subsequent divorce order.

Current Proceedings

[4] In October 2015, former counsel for the father filed a motion without notice seeking a temporary order for sole custody of J.A. with supervised access to mother. A chambers judge granted an order on those terms without providing reasons. The motion was adjourned to open court, with service of the order directed on mother.

[5] The motion came before me on the return date. I set aside the aforementioned order as the motion should have been on notice. I also directed the week about parenting schedule to continue as it had since the consent order in 2011.

[6] When the child was not returned to mother, her counsel brought a contempt motion. I heard that motion and granted a temporary order modifying the week about parenting, directed counselling for the child, requested the involvement of the Office of the Children’s Lawyer and the police enforcement term as mentioned at the outset. The child was delivered to mother that day.

W.R.P.S. Involvement

[7] Several affidavits were filed by the former counsel for father on the contempt motion that demonstrated the inability of W.R.P.S. to provide independent police services for this family. Sergeant Richard Holland and Constable Pat Swan, both friends of father and at his request attended the access exchange site to witness the event when the child was not delivered to mother. Their involvement was improper and intimidating. Counsel for W.R.P.S. reports the officers are now involved in disciplinary proceedings.

[8] There have been prior events involving W.R.P.S. Father had been charged with assault and forcible confinement of mother in 2008. The trial occurred in 2009, during which the charges were withdrawn by Crown counsel. Mother says father’s partner, also a police officer, improperly spoke to one of her children just before she testified. Father says the charges were based on the false allegations of mother.

[9] Officers have been involved in other events, said by mother to have acted improperly. Father denies. Regardless, multiple reports are on file. But no follow up or sanction ever occurred.

W.R.P.S. Since Order

[10] In late November 2015 father reported an alleged assault of the child by mother to W.R.P.S. Mother’s counsel immediately intervened when officers attempted to investigate. In result, the investigation was out-sourced to Metro Toronto Police Service. No charges were reported thereafter.

Discussion

[11] The focus of the issue in this motion is the inherent conflict of interest of a police service when one of the litigants is an employee. Here, the conflict has been clearly demonstrated on the evidence. More important is the best interests of the child, for whom the order was meant to protect. Absent in all of the police evidence is any mention of the child. The best interests of children are supposed to be a priority, an absolute priority.

(i) O.P.P.

[12] In support of the motion by the O.P.P., Staff Sergeant John Mraud provided affidavit evidence. He is the detachment commander of the Cambridge O.P.P. detachment.

[13] Staff Sergeant Mraud reports there are 32 officers assigned to this detachment. Their mandate is to patrol provincial highways in the area. He correctly points out that W.R.P.S. is responsible for providing police services in their geographic area, including the subject matter contemplated by the order herein. There are no agreements in place nor has W.R.P.S. requested O.P.P. assistance in this matter. No mention is made as to any protocol or policy of the Ministry in handling conflicts of interest.

(ii) W.R.P.S.

[14] W.R.P.S. supports the O.P.P. motion. Superintendent Barry Zehr provided affidavit evidence. He says W.R.P.S. will enforce a police assistance order under The Children’s Law Reform Act when the child is within its jurisdiction.

[15] Superintendent Zehr makes reference to “safeguards”, presumably to address the concerns in this case. A superior officer to father, namely a staff sergeant “if available” would attend or, at least, could “monitor and direct the situation”.

[16] No mention was made as to specifically addressing a conflict of interest, other than above, or prior events of such a nature. This concern is magnified by mother’s evidence that Superintendent Zehr is a friend of father. The parties, she says, attended the superintendent’s wedding and father helped train his wife.

[17] Counsel for W.R.P.S. made reference to the disciplinary process if officers fail to comply with section 36 orders. With respect, this is not the remedy. Such disciplinary procedures lack transparency and compound the existing conflict of interest. Of greater importance, such a remedy is of no benefit to the child. Avoiding problems in the first instance is more important.

Legislation

[18] There is no dispute, W.R.P.S. is the presumptive force to enforce a section 36 order as both parties reside within its geographic area, by virtue of sections 4 and 5 of Police Services Act. However, section 5.1 of Police Services Act provides that the O.P.P. shall provide police services if a municipality does not and that the municipality shall pay for same.

[19] Here, W.R.P.S. provides the service in general. The concern, however, is that they may not be able to provide effective and independent service to this family in particular.

Conflict

[20] W.R.P.S. does not have a formal conflict of interest policy. There is an inherent conflict when one of its officers and/or spouse is involved, such as demonstrated by the evidence in this case. Promises of future compliance are not reassuring given past performance.

[21] The legislation allows for agreements with another police force or with the O.P.P. Such has not been done.

[22] There is an informal police to outsource investigations, as occurred here. Protecting children, in my view, is a higher priority than an investigation. Yet children are not treated in that fashion.

Analysis

[23] I conclude W.R.P.S. has failed to provide police services for this family, particularly the child, within the meaning of section 5.1, Police Services Act. Indeed, it would be impossible to provide section 36 services when there is an inherent conflict of interest. There should be in place a policy to address such conflicts and an agreement for another police force to provide the specific service.

[24] When the best interests of a child is at stake, and where there is a legislative gap, the court does have the parens patriae jurisdiction to rectify the situation. See: E. v. Eve, [1986] 2 S.C.R. 388 (S.C.C.), at pp. 426-7.

[25] The evidentiary record in this case clearly supports assigning responsibility to another police force. The child’s future best interests demand independent policing so as to avoid any further emotional harm. Mother is entitled to the comfort of knowing colleagues of father will not be involved. Father, likewise, and also to avoid any concern for purported false complaint.

[26] Here, the Cambridge O.P.P. detachment is the next closest to the residences of mother and father. Absent an agreement with another police force, I conclude, in the best interests of J.A., that the O.P.P. remain as the section 36 police service.

[27] Accordingly, the motion is dismissed. Given the unique nature of the issue, no costs are awarded.

D.J. Gordon J. Date: June 7, 2016