The case of Patterson v Powell 2014 ONSC 1419 addresses the issue of police enforcement clauses in custody and access orders. Justice Pazaratz is not inclined to include these clauses.
The enforceability of family court orders is a serious issue for many of the women with whom we work. Certainly, where there has been a prior history of abuse, many women are concerned that their partners will simply not follow court orders. This concern is even greater when the abuser has threatened to take or keep the children outside the parameters of either an interim or final custody and access order.
Justice Pazaratz first sets out the two scenarios in which a police enforcement clause is requested to be included in a family court order:
- When there is an existing situation involving some urgency such as an abduction where a child needs to be retrieved from one parent and given to the other.
- When there is a more general concern that on some unspecified date in the future one parent may not comply with a custody or access order.
He then sets out the relevant provisions in the Children’s Law Reform Act:
s. 36(1) 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.
s. 36(2) 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 proposed to remove the child or have the child removed from Ontario; or
(c) that the 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.
Justice Pazaratz’s opinion is that there is nothing in section 36 to suggest that police enforcement is appropriate or even available as a long-term, open-ended enforcement tool. He interprets the legislation to mean that such enforcement is intended to deal with current and known situations.
He raises some interesting questions. Among them:
- Why do courts issue orders involving children if there is so little confidence they will be obeyed that they contain an enforcement clause?
- If the court has reasons to believe that a parent will abuse the privilege of custody of access, why would it grant either to that parent?
- If the court knows in advance that exchanges are likely to be problematic, shouldn’t the court consider other options to begin with?
- What is the impact on children of having police become involved in removing them from one parent and giving them to the other?
- How can the court respond to parental non-compliance without punishing the child?
His decision, even for those of us who might not agree with it, is very thoughtful and includes a review of considerable case law that does not support automatic or even common use of police enforcement clauses.
He also canvasses concerns from the policing perspective, noting that the police are not parties to custody proceedings, which may mean they are not subject to any order emanating from that proceeding. He notes that many police forces are over-extended and under-resourced. Justice Pazaratz notes that police involvement may serve to escalate tension and to facilitate or compound parental alienation.
He writes that these clauses have understandable appeal:
- They send a strong message that court orders should not be ignored
- They build a mechanism for an immediate resolution
- They are an inexpensive alternative to returning to court when a custody and access order is not followed
He encourages parents to assume the best rather than the worst when non-compliance is the exception rather than the rule. For example, he says, sometimes children do become sick or uncooperative; sometimes scheduling problems arise, there is bad traffic or unexpected weather to contend with.
If the non-compliance is chronic, it is Justice Pazaratz’s opinion that this is a problem the “police can’t fix anyway. At best, police enforcement amounts to a band-aid solution. . . . there’s a good chance the order itself needs to be changed to deprive the offending parent of the opportunity for more unilateral action or defiance.”
It is unfortunate, given the extensive decision Justice Pazaratz has written, that he did not take the time to comment specifically on cases of abuse. Surely these cases should be identified as ones where past behaviour (including threats to remove or not return children) should be able to serve as an indication of high risk in the future and to warrant use of a police enforcement clause.
This is a case worth reading in full because of the detail and thoughtfulness of Justice Pazaratz’ decision.