L.(N.) v M. (R.R.) 2016 ONSC 809: In this case, the police refused to enforce a court order to deliver a child, now over the age of 16, to his father, when the child was refusing to have contact with the father. The Chief of Police was made a party to the motion.
In coming to his decision, Justice Perkins reviews the 2014 case of Patterson v Powell, in which Justice Pazaratz spoke strongly against police enforcement clauses in custody and access orders. These clauses are often made pursuant to section 36 of the Children’s Law Reform Act, which permits the court, where there are serious concerns that a parent may not comply with the custody and access order, to require the involvement of the police.
Justice Perkins notes:
[T]here is a tendency to forget that section 36 requires a present, existing reality – that a person is unlawfully withholding a child, or that a person proposes at the time the order is sought to remove a child from Ontario – not a future risk or possibility that a child might not be returned or that a child might be removed.
In this case, Justice Perkins finds that the children, even if under the influence of their mother, were clearly unwilling to spend time with their father and so the police should not continue to deliver the son to his father only to have him leave.
Once he has dealt with the police enforcement matter, Justice Perkins notes:
The wishes of an alienated child may be warped and misconceived, but they are nonetheless real. The father says that the children’s wishes should be disregarded, because they are not truly the children’s own wishes. At this point, does this really matter? The expressed wishes are strong, consistent, and long lasting, and they have been acted on by the children in defiance of the authority of both parents, the arbitrator, the police and this court’s order. The fact is that the current custody order in favour of the father has not worked. . . No person has custody or access rights over either of the sons under any statute or under any non statutory jurisdiction of the court. Each of the sons is his own master in that respect. . . That being the case, the parents do not have any right to secure information about the sons from providers of medical and educational services or, for that matter, from each other. Access to information about each son is entirely within his own control.