Court File and Parties
Newmarket Court File No.: FC-19-57826-00 Date: 20200512 Superior Court of Justice – Ontario – Family Court
Re: Ela Sokolov, Applicant And Alexy Sokolov, Respondent
Before: The Honourable Mr. Justice G.A. MacPherson
Counsel: Alexandra Abramian, for the Applicant Respondent, Self-represented
Heard: In writing
Endorsement
1The Respondent brings an urgent motion, during the Covid-19 pandemic, requesting an order that the costs order made by Justice Leibovitch dated December 6, 2019 (that the Applicant pay to the Respondent $1,600 payable within 45 days) be payable by May 11, 2020.
2The York Regional Police are a Non-Party. The Chief of Police brings an urgent motion, by way of 14B, requesting an urgent hearing to address the issue of police enforcement, with possible use of force on the children to enforce the parenting order.
Background
3There are two children, Nika Sokolov, aged 10, and Richard Sokolov, aged 7.
4The parents are engaged in a high-conflict custody and access case and the children are the unwilling participants.
5There is an OCL assessment underway and there has been CAS involvement for some time.
6The children currently reside in the primary care of the Respondent and have parenting time with the Applicant every second weekend from Friday to Tuesday and every other week from Monday until Tuesday.
7There have been continuous problems with this arrangement. More specifically, the Applicant has not followed the court ordered access. This has required court intervention and a police enforcement clause to ensure the parenting order is complied with.
8On December 6, 2019 Leibovitch, J. made an order dated December 6, 2019 in which the Applicant was ordered to pay costs to the Respondent in the amount of $1,600 and payable in 45 days.
Motion brought by York Regional Police
9On April 22, 2020 the York Regional Police brought an urgent motion to vary the police enforcement clause of the December 18, 2019 order.
10On December 18, 2019 a Temporary Order for police enforcement was made following the Applicant’s refusal to return the children to the Respondent. Paragraph 3 of that Temporary Order reads as follows:
- The police shall enforce this Order as follows:
a. Pursuant to section 36(2) and (4) of the Children’s Law Reform Act, the Ontario Provincial Police, Royal Canadian Mounted Police, York Regional Police, Barrie Police, South Simcoe Police and/or any other law enforcement agency in the Province of Ontario as may have jurisdiction, shall be directed and authorized:
i. to locate, apprehend and deliver the children of the marriage, Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (D.O.B: September 6, 2013), to the Respondent Father, namely Alexey Sokolov; and/or,
ii. to assist in the enforcement of the Order with respect to custody and access arrangements as set out in the Order of the Honourable Justice Douglas dated June 19, 2019.
b. Upon request and receipt of an original court Order or certified copy of the Order, pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the following children of the marriage, namely Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (D.O.B: September 6, 2013), may be, shall locate, apprehend and deliver the child(ren) to the Respondent Father’s primary residence.
c. For the purpose of locating and apprehending the children of the marriage, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that Nika Sokolov (DOB: June 2, 2010) (“Nika”) and/or Richard Sokolov (D.O.B: September 6, 2013) may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
d. This order shall expire in 6 months from the date of this Order, pursuant to s. 36(7) of the Children’s Law Reform Act.
11On December 24, 2019 the Respondent requested the assistance of the York Regional Police to again enforce the order.
12On December 31, 2019 the Respondent requested the assistance of the York Regional Police to again enforce the order.
13On April 15, 2020 the Respondent requested the assistance of the York Regional Police to again enforce the order.
14On April 24, 2020 the Respondent returned to court asking for a police enforcement order. It was granted and the York Regional Police enforced the parenting order. In my endorsement dated April 24, 2020, I included in my order the following enforcement clause at subparagraph 29(f) which reads as follows:
29…
f. The police shall enforce this order as follows:
i. Pursuant to subsections 36(2) and (4) of the Children’s Law Reform Act, the Ontario Provincial Police, Royal Canadian Mounted Police, York Regional Police, Barrie Police, South Simcoe Police and/or any other law enforcement agency in the Province of Ontario as may have jurisdiction, shall be directed and authorized:
to locate, apprehend and deliver the children of the marriage, Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (DOB: September 6, 2013) to the Respondent Father, namely Alexey Sokolov.
ii. Upon request and receipt of the original court order or certified copy of the order, pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the following children of the marriage, namely Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (DOB: September 6, 2013), may be, shall locate, apprehend and deliver the children to the Respondent father’s residence.
iii. For the purpose of locating and apprehending the children of the marriage, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that Nika Sokolov (DOB: June 2, 2010) and / or Richard Sokolov (DOB: September 6, 2013) may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
iv. This police enforcement order shall expire in six months from the date of this order, pursuant to section 36 (7) of the Children’s Law Reform Act.
15Despite the parenting order and the police enforcement clause the Applicant has continued to breach the parenting order by refusing to follow the parenting order.
16There is no doubt that the use of police enforcement will be challenging for these children where there are allegations of alienation and allegations of abuse. The children are unable to move freely between homes. Parenting transitions must be extremely upsetting for both children.
17Today, with the world under a Covid-9 pandemic, the use of police enforcement that requires the police to “locate, apprehend and deliver” the children has its own set of risks.
18The use of police enforcement is not meant to be a long term, multiple use, regular scheme in enforcing parenting arrangements. A less disruptive solution to chronic non-compliance with the parenting order is more appropriate.
19It was hoped that the issue of custody would be determined following a trial in the spring 2020 sittings. That will not occur.
20In the event the Applicant does not return the children to the Respondent in the future, as set out in the order of Douglas J. dated June 19, 2019, this will constitute a material change in circumstances and the parenting arrangements will need to be amended, in connection with one additional police enforcement clause, if necessary.
21For all of these reasons, the December 18, 2019 order of MacPherson J. and the April 24, 2020 order of MacPherson J. shall be amended to remove the police enforcement clauses.
Motion brought by the Respondent
22The Respondent brings a motion, on an urgent basis, for an order that the Applicant pay $1,600 of costs to the Respondent as ordered by Leibovitch J. on December 6, 2019.
23A Notice to the Profession was sent on March 15, 2020 advising that the Superior Court of Justice operations are suspended effective March 17, 2020. The court advised that in terms of family law events, only the following emergency motions would be heard pending further notice:
(a) requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
(b) urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
(c) dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order; and
(d) in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.
24There is no urgency here as there is already a costs order. The Applicant was to pay to the Respondent $1,600 in costs within 45 days of the December 6, 2019 order. That order continues.
Order
25There shall be an order as follows:
- The December 18, 2019 order of MacPherson J. shall be amended to delete the police enforcement clause being paragraph 3 which reads as follows:
- The police shall enforce this Order as follows:
a. Pursuant to section 36(2) and (4) of the Children’s Law Reform Act, the Ontario Provincial Police, Royal Canadian Mounted Police, York Regional Police, Barrie Police, South Simcoe Police and/or any other law enforcement agency in the Province of Ontario as may have jurisdiction, shall be directed and authorized:
i. to locate, apprehend and deliver the children of the marriage, Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (D.O.B: September 6, 2013), to the Respondent Father, namely Alexey Sokolov; and/or,
ii. to assist in the enforcement of the Order with respect to custody and access arrangements as set out in the Order of the Honourable Justice Douglas dated June 19, 2019.
b. Upon request and receipt of an original court Order or certified copy of the Order, pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the following children of the marriage, namely Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (D.O.B: September 6, 2013), may be, shall locate, apprehend and deliver the child(ren) to the Respondent Father’s primary residence.
c. For the purpose of locating and apprehending the children of the marriage, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that Nika Sokolov (DOB: June 2, 2010) (“Nika”) and/or Richard Sokolov (D.O.B: September 6, 2013) may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
d. This order shall expire in 6 months from the date of this Order, pursuant to s. 36(7) of the Children’s Law Reform Act.
- The April 24, 2020 order of MacPherson J. shall be amended to delete the police enforcement clause being subparagraph 29(f) which reads as follows:
- …
f. The police shall enforce this order as follows:
i. Pursuant to subsections 36(2) and (4) of the Children’s Law Reform Act, the Ontario Provincial Police, Royal Canadian Mounted Police, York Regional Police, Barrie Police, South Simcoe Police and/or any other law enforcement agency in the Province of Ontario as may have jurisdiction, shall be directed and authorized:
to locate, apprehend and deliver the children of the marriage, Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (DOB: September 6, 2013) to the Respondent Father, namely Alexey Sokolov.
ii. Upon request and receipt of the original court order or certified copy of the order, pursuant to section 36 of the Children’s Law Reform Act, the police force having jurisdiction in any area where it appears that the following children of the marriage, namely Nika Sokolov (DOB: June 2, 2010) and Richard Sokolov (DOB: September 6, 2013), may be, shall locate, apprehend and deliver the children to the Respondent father’s residence.
iii. For the purpose of locating and apprehending the children of the marriage, a member of a police force may enter and search any place where he or she has reasonable and probable grounds to believe that Nika Sokolov (DOB: June 2, 2010) and / or Richard Sokolov (DOB: September 6, 2013) may be, with such assistance and such force as are reasonable in the circumstances and such entry or search may be made at any time.
iv. This police enforcement order shall expire in six months from the date of this order, pursuant to section 36 (7) of the Children’s Law Reform Act.
The urgent motion brought by the Respondent is dismissed.
Each party will bear their own costs of the motion.
Justice MacPherson Released: May 12, 2020