By: Nicole Matthews

Separation and divorce are painful for clients, but lost in the discourse is the impact on children. Usually, the warring parents may agree to terms of sharing time with their children, or a court may impose terms that are believed to be in the “best interest” of the children. The problem arises when the concept of “best interests” of the child becomes another issue of competition between the parents. In this game of love and war, there MUST be a loser and a winner, and to the winner goes the spoils, including property, monies and of course….children. 

Children are not property and should not be treated as such, but how does one control a parent who is determined to act in what they firmly believe is in their children’s “best interest”? 
‘After all what do the judges and/or lawyers know? Judges and lawyers are unfeeling individuals focused on throwing complicated words and phrases that mean nothing to anyone but themselves. They are out of touch and tone deaf to the emotional impact of separation on the parent and child, and only that parent can fix the problem’.

The legislation provides a remedy for the recalcitrant parent, bound and determined  to have his/her own way and willfully disobey court orders, especially with respect to their children, who they love so much and whose best interests are their number one priority. 

‘How can no one else see how much they love their child and are acting only for the benefit of their child! And by the way, the other parent is incompetent and incapable of being a good parent’.
But there remains hovering over the situation, the inconvenience of the demands of law and respect for the legal process. 

The law is clear and the expectation of the courts and judges is clear- court orders are to be respected and obeyed. But what about the situation where children are refusing and/or being withheld from one parent by the other? Should the court take drastic action to obtain compliance? The law provides for police officers to step in and act as the “big stick” for the court and enforce court orders. But, there are scenarios where both the court and police officers are reluctant to impose this “big stick”. The question then becomes: is this fair? But fair to whom? The parent being denied time/relationship with their children; the child who is caught up in the tug of war between their parents; the police officer who already has a difficult job and now has to deal with the complication of children who may be traumatized by contact with the criminal justice system (even though technically that is not the case) and not trust the police again. 

Whose competing interest should dominate and why?

Section 36 (2) of the Children’s Law Reform Act R.S.O. 1990 c.C.12 provides the statutory grounds for police enforcement clause “…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.”

The intention of the police enforcement clause is set out in the oft-cited decision of the Honourable Mr. Justice Pazaratz in the decision of Patterson v. Powell [2014] O.J. No. 985; [2014] ONSC 1419, where the circumstances wherein the clause would be used as set out in the statute were clarified. The court noted that there were two (2) circumstances in which a police enforcement clause is to be included in a family court order. One (1) being the “present”, that is an existing situation, involving urgency. “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.”

Two (2) being the “future”, wherein a concern that at some unspecified time, a party may not be in compliance with a court order and police assistance may be required to ensure that the child is transferred between the parties as intended by the court order.

The court went into great detail to balance the potential impact on a long standing police enforcement clause in circumstances of both the young and tender child and the older and more mature child and their perception of repeated police presence in their familial dealings. 

The case law strongly supports the careful analysis encouraged by Justice Pazaratz in requesting and/or granting orders for police enforcement of parenting court orders. The older more mature child in numerous cases, have very clearly and strongly rejected efforts by one or more of the adults in their lives to control their decision-making and voted with their feet, blatantly defying efforts by local police to enforce any court orders or to compel their compliance with said court orders.   N.L. v. R.R.M [2016] O.J. No. 6266; 2016 ONCA 915, a decision of the Ontario Court of Appeal, the father who had been granted custody of the younger of his two (2) sons, appealed a decision of a motion’s judge to rescind an order for police enforcement of a custody order. The moving party on the motion to rescind the police enforcement clause was the Chief of Police, who was concerned for the safety of the child if they were to enforce the custody order. The child had run away on numerous occasions and had himself contacted the police to inform them that he would run away if he was made to return to his father. In S.G.B. v. S.J.L. [2010]O.J. No.3619; 93 R.F.L. (6TH) 209; 2010 CarswellOnt 6301, another decision of the Ontario Court of Appeal, it was the teenaged child subject to a police enforcement clause order, who was the actual appellant seeking to stay the court order. The father was appealing the court order.  The teenager had been apprehended and detained by the police, pending the court’s decision and would be delivered to the court hearing to possibly be turned over to his mother. The child made it clear to the court that he would rather go to jail than comply with the court order and reside with his mother. The court considered, “It is difficult to imagine how the harm resulting from such a situation would be anything but irreparable.” 

It is this concern for the safety of children that led to the police enforcement clause provision of section 36 of the Children’s Law Reform Act and it’s the fallout from the attempt by the police to enforce court orders that have raised different concerns for the safety of children. A paradox of intent and purposes.

The situation may seem bleak to parents whose relationships with their children are being negatively impacted by the other parent who deliberately and/or unintentionally undermine these relationships, if police enforcement clauses are not readily available. The court has encouraged counsel and parties to utilize all other options, before seeking police enforcement clauses, which should only be granted in exceptional cases. 

On a final note, the Office of the Children’s Lawyer, whose role it is to represent children and be their voice in family law matters, in the decision of Eustace v. Eustace  [2018]O.J. No.2168; ONSC 2367, a decision of the Ontario Superior Court of Justice, Divisional Court, in appealing a cost award against them in a trial where the judge held them liable for not seeking assistance from the court to compel their child client  and/or his father to cooperate with them, the court in its analysis considered that “…Seeking the court’s assistance to force the child to participate in further interviews with the OCL, on threat of contempt or police, might well have caused further conflict and stress for the child….” 

Nicole Matthews is a sole practitioner in the practice of Family Law. 

She can be reached
20 Hughson St S.
Hamilton, ON 
L8N 2A1
Tel: (905) 523-0017