INTRODUCTION

 

This motion was brought by the Hamilton Wentworth Regional Police

(hereinafter referred to as the "Police") under Rule 36 of the

Family Court Rules. R.R.O. 1990, Reg. 202. Just prior to

argument, counsel for the Police advised that they had a witness

available to give viva voce evidence to explain Police procedure

if the Court deemed it necessary. The other parties also wished

an opportunity to give oral testimony. I reserved on the need to

call evidence, but ultimately concluded that for the purpose of

this ruling I would rely on affidavit evidence only.

 

Rule 36 reads as follows:

 

36. Where an order is made,

 

(a) at a hearing at which a party failed to appear through

accident, mistake or insufficient notice;

 

(b) that contains an error arising from an accidental slip

or omission;

 

(c) that requires amendment in any particular on which the

Court did not adjudicate; or

 

(d) that ought to be set aside or varied on the ground of

fraud or of facts arising or discovered after the order

was made,

 

a party who is affected by the order may make a motion to

have it set aside or varied.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court File No. D 18/95

 

ONTARIO COURT (GENERAL DIVISION)

 

FAMILY COURT

 

BEFORE: The Hon. Mr. Justice R. J. Mazza DATE:

March 21, 1997

 

BETWEEN:

 

WAYNE EUGENE ALLEN

 

Applicant

 

- and -

 

 

 

DEBORAH GRENIER

 

 

 

Respondent

 

- and -

 

 

 

THE HAMILTON-WENTWORTH REGIONAL POLICE SERVICE

Third Party

 

--------

 

JUDGMENT

 

--------

 

Appearances:

 

Mr. Wayne Eugene Allen, Applicant In Person

 

Mr. John Spears, Counsel for the Respondent

 

Ms. Laurie Vechter, Assistant Corporate Counsel,Counsel for Third Party

 

 

 

Based on submissions made by the Police and by the Solicitor for

the Respondent, I am satisfied that the Police were not present

at the making of the Order, that they are a party who has been

affected by the Order, and, therefore, are permitted to argue

that the Order should be varied in accordance with one or more of

the subsections of Rule 36, or should ultimately be set aside. It

should be noted that the Applicant consented to granting the

Police standing on this application.

 

History

 

On June 5, 1996, an Order was made out of the Family Court Branch

of the Ontario Court, General Division by Madam Justice Wallace.

That Order granted specified access to the father, Wayne Eugene

Allen and included authorization to the Police to enforce access

"as and when necessary

 

On September 5, 1996, the Applicant attended upon the Police as a

result of being denied access by the Respondent, and asked the

Police to enforce access m accordance with the Order. Paragraph 3

of the Affidavit of Police Officer Lisa Swire states as follows:

 

3. I am informed and do verily believe that on the 5th day

of September 1996, the Respondent, Wayne Eugene Allen

attended the Hamilton-Wentworth Regional Police Service

to request that the police enforce the access clause of

the above referenced Order. I am advised and do verily

believe that members of the Police Service attempted to

contact the Family Court to determine the validity of

the said Order to determine what assistance could be

provided to Mr. Allen. I am further advised and do

verily believe that Mr. Allen was agitated and left the

Police Service prior to the completion of

investigation. To the best of my knowledge, the Police

Service has had no further contact with Mr. Allen since

that date.

 

On or about September 3, 1996, the Applicant also brought a

motion for contempt against the Respondent for contravening the

court Order. The motion was ultimately adjourned to December 20,

1996, for argument at which time Mr. Justice Steinberg found the

Respondent to be in contempt of the Order and on January 6, 1997,

sentenced her to five days in jail.

 

It is not disputed that between September 5, 1996, and March 4,

1997, the day of the hearing of this motion, the Applicant had no

further contact with the Police for the purpose of enforcing the

Order. It is also clear that between those two dates, the Police

made no further effort to contact the Applicant for the purpose

of enforcing the access provisions or to advise the Applicant of

their intentions to seek direction from the Court under Rule 36.

 

ISSUES

 

Upon my review of the material and my consideration of the

arguments put forth by the respective parties, I find that there

are two issues to be determined:

 

1. What was the obligation of the Police when presented with an

Order from the Applicant to enforce access? Did the Police

adequately fulfill that obligation?

 

2. Did the Order of June 11, 1996 contain enough information to

enable the Police to enforce the access provisions?

 

 

 

FIRST ISSUE

 

When the Applicant entered the police station on September 5,

1996, to request assistance from the Police to enforce access

under the Order, he was met with a response by the Police that

they wished to "contact" the Family Court and to conduct an

"investigation" into the validity of the Order. The affidavit of

Officer Swire does not elaborate on the type of contact to be

made and the kind of investigation to be undertaken. In any

event, according to Officer Swire's affidavit, the Applicant left

the Police Station before the Police could complete their

investigation. Based on my review of the affidavit material, it

is unclear as to whether or not the Police completed their

investigation, although the Applicant denies that any

investigation had taken place. It is also unclear as to what was

specifically said between the Applicant and the Police on

September 5, 1996. What is clear is that the Applicant was left

with the impression that the Police were uncomfortable with

enforcing the Order in its present form and were not about to

give him immediate assistance in an urgent situation. Rather than

wait, the Applicant sought alternative redress from the Court. I

find his actions to be reasonable, but not to be just cause for

ending Police involvement. Although the Applicant was successful

in obtaining access through Family Count, the result did not

terminate Police responsibility.

 

A remedy under s.36 of the Children's Law Reform Act, R.S.O.

1990, c. C.l2, is an independent and alternative remedy separate

from a contempt proceeding. The fact that the Applicant was

successful in obtaining access through an alternative remedy,

does not vitiate the Order. As long as the Police have been made

aware of the Order, they are obliged to address their concerns

about its implementation. The fact that they are before this

Count, albeit six months later, is an acknowledgment by the

Police of their obligation to seek assistance from the Court

where necessary. However, I must address the length of time taken

by the Police to bring this motion forward.

 

When the Police are presented with an Order by a party to enforce

the access provisions of that Order, they have two options:

firstly, they are to assume that the Order is valid and must make

reasonable efforts to comply with their statutory duty to act on

the Order; or secondly, and only where it is clear that the terms

of the Order require further explanation, they must bring a

motion before the Family Court from which the Order originates to

seek direction concerning its terms and then act on those

directions. If they choose the second option, they must make

their intentions clear to the party seeking enforcement and must

use their best efforts to bring all affected parties before the

court with reasonable dispatch. It is only where the aggrieved

party either directly or implicitly advises the Police that he or

she no longer wishes to enforce the Order, that their obligation

ceases. There is no evidence before me that the Applicant

expressly or impliedly confirmed to the Police his disinterest in

pursuing his remedies under the Order to enforce access "as and

when necessary". In the absence of such evidence, the Police are

not allowed to leave the Order in abeyance indefinitely. To do so

is detrimental to the best interests of the child, seriously

undermines judicial authority, ignores the rights of the

aggrieved party, and sends a message to the offending party that

an Order may be contravened without any consequence.

 

Rule 36 of the Family Court Rules does not provide a time period

within which an application may be brought before the Court but,

nevertheless, it should be consistent with the principle referred

to in Rule 4 of the same rules which reads as follows:

 

4. These rules shall be construed liberally so as to

secure an inexpensive and expeditious conclusion of

every proceeding consistent with a just determination

of the proceeding.

 

Since the objective of every proceeding is to reach an

expeditious conclusion, the inference under Rule 36 is that an

application should be brought as soon as is reasonably practical,

after notice of the Order has been given to the affected party.

However, I do not have affidavit evidence before me which offers

a reasonable explanation for the lengthy delay between the

Applicant's first visit and the motion before me. Furthermore,

although I recognize that the Police have numerous other duties,

I must find that the period of six months taken by the Police to

act on this Order is unreasonable.

 

SECOND ISSUE: TERMS OF THE ORDER

 

The salient provisions of the Order are as follows:

 

10. This COURT FURTHER ORDERS that the police are to assist

in enforcing access as and when necessary.

 

...

 

12. THIS COURT FURTHER ORDERS that the Applicant shall have

interim access with the child from Thursday at 9:00

a.m. to Sunday at 11:00 &m. weekly except for Father's

Day when the Applicant's access shall be extended to

6:00 p.m. on Sunday.

 

...

 

14. THIS COURT FURTHER ORDERS that the access schedule is

to continue unless the Respondent fails to deliver the

child as ordered provided that if there is a breach of

this schedule by the Respondent, the police shall

immediately enforce this Order and the time sharing of

seven consecutive days to each parent shall begin with

the first seven days to be with the Applicant.

 

 

The Police are of the opinion that the Order cannot be enforced

in its present form and in support of this position, they make

the following arguments:

1. Lack of reference to section 36 of the Children's Law

Reform Act does not permit the Police service to assume

enforcement obligations in custody and access

situations.

 

2. There is an inconsistency between paragraphs 10, 12 and

14 of the Order in that the Police are being asked

to enforce two different access schedules.

 

3. The Order does not contain specific Police duties and

responsibilities as set out in the legislation.

 

4. The Order does not contain an expiry date as required

by section 36.

 

5. The Order contains a general statement that imposes

unlimited and continued use of Police resources, which

may be used in circumstances where Police assistance

may not be the appropriate method for enforcement.

 

Counsel for the Respondent supports the position of the Police

and also argues that the Order has now expired. The Applicant

takes the position that the Order was clear on its face and

therefore enforceable, and that the Police should not have had

any doubts as to their duties under the Order. He argues that

once an Order is made under s. 36(2) the statutory duties under

that section are then invoked. He also argues that the Order

should remain in effect.

 

 

 

1. Lack of Reference to Section 36

 

Subsection 36(2) of the Children's Law Reform Act reads as

follows:

 

36. ...

 

(2) Order to locate and take child - Where a court is

satisfied upon application that there are reasonable

and probable grounds for believing

 

(a) that any person is unilaterally 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

proposes to remove the child or have the child removed

from Ontario; or

 

 

 

(c) that a 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.

 

 

Paragraph 5 of Officer's Swire's affidavit reads as follows;

 

5. It is my respectful belief That The Hamilton-Wentworth

Regional Police Service is unable to properly comply

with the direction of the Court to enforce paragraph 10

and/or paragraph 14 of the said Order. It is not

specified whether these particular terms were ordered

under s.36 of the CLRA. It is respectfully submitted

that unless ordered under s.36 of the CLRA which

requires an application be made following a breach of

custody or access provisions, the Police Service may

not properly assume enforcement obligations in custody

and access situations.

 

Counsel for the Police refers to s.42 of the Police Services Act,

R.S.O. 1990, c. P.15, which reads as follows:

 

42.-(1) The duties of a police officer include,

 

(a) preserving the peace;

 

(b) preventing crimes and other offences and providing

assistance and encouragement to other persons in their

prevention;

 

(c) assisting victims of crime;

 

(d) apprehending criminals and other offenders and others

who may lawfully be taken into custody;

 

(e) laying charges, prosecuting and participating in

prosecutions;

 

(f) executing warrants that are to be executed by police

officers and performing related duties;

 

(g) performing the lawful duties that the chief of police

assigns;

 

(h) in the case of a municipal police force and in the case

of an agreement under section 10 (agreement for

provision of police services by O.P.P.), enforcing

municipal by-laws;

 

(i) completing The prescribed training.

 

 

 

Although I agree with counsel that the duties of the Police set

out in the Act do not specify enforcement of civil court orders,

I make two observations. Firstly, s.42 introduces the specific

duties of a police officer with the term "include". "Include" as

defined in the Black's Law Dictionary is a "[t]erm [which] may,

according to context, express an enlargement and have the meaning

of *and* or *in addition*, or merely specify a particular thing

already included within general words theretofore used.

"Including" a within statute is interpreted as a word of

enlargement or of illustrative application as well as a word of

limitation." Secondly, s.141 of the Courts of Justice Act, R.S.O.

1990, c. C.43, which was also referred to me by Police counsel,

reads as follows:

 

141.-(1) Unless an Act provides otherwise, orders of a court

arising out of a civil proceeding and enforceable in Ontario

shall be directed to a sheriff for enforcement.

 

I find, therefore, that s.42 of the Police Services Act is to be

read in conjunction with s.141 of the Courts of Justice Act. The

term "include" under the former Act must be interpreted as "in

addition to" so as to provide for duties allocated to police

officers under specific statutes such as the Children's Law

Reform Act.

 

Counsel for the Police also made reference to three cases which

consider the jurisdiction of the Police to enforce a court Order.

They are Leponiemi v. Leponiemi(1982), 35 O.R. (2d), 440 (C.A.);

the second case is Re: Bonczuk v. Bourassa (1986), 55 O.R. (2d)

696 (H.C.J.), Carruthers J.; and the third case is J.E.K. v C.K.

(1991), 85 D.L.R. (4th) 284 (Ont. Gen. Div.), Soubliere J.

 

 

In the Leponiemi case, the Court of Appeal overturned a trial

judge's decision to find two police officers in contempt for not

enforcing a court Order. The court found that the Police should

have been given an opportunity to defend the contempt proceeding.

Although the Court of Appeal questioned whether the trial judge

had jurisdiction to make such an Order and ultimately, therefore,

whether the Police had jurisdiction to enforce the Order, it did

not form part of the court's ruling. In any event, the court did

not have the benefit of s.36(2) which was not brought into force

until October, 1982, just over seven months after the Leponiemi

case was released. That section of course clearly gives the

Police jurisdiction to enforce an Order for access.

 

In the Bonczuk case, the Police attempted to enforce a Quebec

Order in Ontario under the provisions of the Criminal Code. The

court held that s. 250 was not a section which enabled the Police

to enforce a custody order. It concluded that the only section to

which the Police could turn was 5. 37 (now 36) of the Children's

Law Reform Act. An extra-provincial order was involved in Bonczuk

and the Court held that s.36 could only be invoked once formal

recognition of the order had been made under s.42 of the same

Act. The moving party failed to comply. In my opinion, although

the Order made no reference to the jurisdiction of the Police to

carry out the enforcement provisions of the Order, it is also

clear that, had the moving party made proper use of sections 36

and 42 of the CLRA, the Court was prepared to recognize Police

jurisdiction under the Children's Law Reform Act, although

neither the Act nor the section was mentioned in the Order.

 

As for the J.E.K. v. C.K. case, that was a decision where the

father tried to apprehend the children without giving the mother

notice of his application In making his decision, the court

referred to s.37 (now 36) of the Children's Law Reform Act and

infers from that section that except in a case where action must

be taken without delay, a party against whom an application is

being made for custody or access must be given notice. I would

agree with that interpretation. Applying that case to the case

before me, it is clear from the reading of the Order that the

Order was made in the presence of counsel for both parties.

Therefore, I am satisfied that the Respondent had notice of the

provisions of the Order including notice of the Applicant's right

to enforce access with the assistance of the Police, if and when

necessary. It is clear that the notice provision of s.36 refers

only to the application itself and not to any requests of the

Police, subsequent to the Order, to enforce access.

 

Although these cases refer to the statutory jurisdiction of the

Police to enforce access Orders, none of these cases require

reference of the statute or the section of the statute in the

Order to invoke Police jurisdiction. That is understandable - for

it is the fact of the legislation that gives Police jurisdiction,

not reference to the section in the Order. It is the legislation

that validates the Order, not the reverse sequence. If the

validity of every statutory duty or obligation imposed by an

Order depended upon reference to a statute or statutory section,

our system of justice would be in disarray. It is only where very

similar statutory duties are evident in different statutes that

reference to the specific statute may be made for clarification

only. There is no evidence of statutory confusion before me. In

any event, paragraph 4 of Officer Swire's affidavit states as

follows:

 

4. In my capacity as Sergeant in the Family Crisis Unit, I

am familiar with the custody and access enforcement

obligations which may be placed upon a police service

in accordance with section 36 of the Children's Law

Reform Act (CLRA).

 

 

That statement confirms the Police's extensive knowledge of s.36

Orders and I would infer their ability to identify this kind of

Order despite the absence of any reference to the section. As for

the suggestion in Officer Swire's affidavit that the Order

requires a specific acknowledgment of a finding of breach of

custody or access before an Order to enforce access can be made,

I disagree. In my opinion, the Police need not look behind the

Order since absent any cogent evidence to the contrary which is

not before me, the making of the Order will always give rise to

the assumption of a finding of "unlawful withholding".

 

However, the Court recognizes the onerous task placed on the

Police to assist an aggrieved party in exercising either custody

or access. The Police are asked to intervene in a bitter conflict

between parents who are arguing over a child. It is unpleasant.

It is troublesome. But Police intervention is sometimes

necessary. The law is clear that access is always the right of

the child and not of the parent. According to the law, it is

presumed that the child will benefit equally by the influence of

both parents who have demonstrated adequate and positive

parenting skills. I find that it is reasonable to conclude that

the parents in this particular case before me demonstrate those

skills. When a Court is called upon to give directions concerning

an Order of access and custody, it must be receptive to any

concerns of any of the parties affected by the Order, including

concerns of a party such as the Police, in this case, who were

not in attendance at the time of the making of the Order. And

although the concerns may not be supported by the law, if they do

not change the fundamental objectives of the Order, the Court

should take the opportunity in the presence of all parties to

fine-tune the Order to address those concerns- Specifically, I'm

referring to the benefit of including in the Order an

acknowledgment of a finding of unlawful withholding under

ss.36(2).

 

I find that such an inclusion would once and for all provide to

all parties a clear and unequivocal explanation as to the basis

of the Order, and the authorization of the Police to enforce the

Order. Although such an inclusion is not necessary to validate

the Order it is hoped that it will facilitate enforcement of

access and minimize the inconvenience to all the affected

parties. I find, therefore, that it is appropriate to amend the

Order as follows:

 

10. THIS COURT having been satisfied that there are

reasonable and probable grounds for believing that the

Respondent is unlawfully withholding the child referred to

in paragraph 1 of this Order from the Applicant, further

orders that the Hamilton-Wentworth Police service or any

other Police service where the child is located do all

reasonable things to assist the Applicant to locate,

apprehend and deliver the child to ensure compliance with

the terms of custody and access as specified in this Order,

as and when necessary.

 

 

 

2. Inconsistency Between Paragraphs 10, 12 and 14

 

Paragraph 6 of the affidavit of Officer Lisa Swire reads as

follows:

 

 

6. It is my further respectful submission that the

provisions of paragraph 10 conflict with the provisions of

paragraph 14 of the said Order. while paragraph 10 directs

the police to assist in enforcing access as and when

necessary, paragraph 14 purports to specify that if the

Respondent fails to deliver the child as per the access

schedule, the police shall immediately "enforce this

Order..." Accordingly, any breach of the access order is to

result in police "enforcement" and the apparent

implementation of a new access schedule as specified in

paragraph 14.

 

 

 

As I read paragraph 10, it simply makes reference to the Police

to order enforcement of the access. Paragraph 14 merely specifies

a particular situation in which the Police may be called upon to

enforce access. However, I agree that the Order does contain two

access schedules, the first in paragraph 12 and the second in

paragraph 14. Based on the present wording of the Order, I would

agree that the Police would be in a quandary as to which access

schedule to enforce. This does not, however, make the Order

invalid; it merely requires clarification. I must note that the

purpose of the endorsement is to set out the substantive

provisions of the Order. And although I recognize that the Police

were not present at the making of the Order, the parties who were

present are responsible for drafting the Order to incorporate

those provisions in a clear, orderly and methodical fashion. As I

read paragraph 12 and paragraph 14, it appears that the access

schedule referred to in paragraph 14 automatically takes affect

if and when the Respondent breaches the access schedule set out

in paragraph 12. Accordingly, I will make an amendment to the

Order to set out what I think were the intentions of the parties

and the judge in making the original Order. This variation will

be as follows:

 

14. THIS COURT FURTHER: ORDERS that the access schedule is

to continue unless the Respondent fails to deliver the child

as ordered. If there is a breach of the schedule set out in

paragraph 12 by the Respondent, the Police shall immediately

enforce this Order by assisting the Applicant in enforcing

the alternative terms of access as set out in paragraph

14(a).

 

14.(a) UPON the Respondent's failure to abide by the

original access schedule as set out in paragraph 12, an

alternative form of access, namely timesharing of seven

consecutive days to each parent shall begin with the first

seven days to be with the Applicant starting on the day

immediately following the day of denied access.

 

 

 

 

 

 

Paragraph 7 of Officer Swire's affidavit reads:

7. It is my respectful opinion and belief that the Police

Service is also unable to determine the expectations of the

court with respect to paragraph 14. Even should the

provisions of paragraph 14 be in the nature of an order

granted pursuant to s.36 of the CLRA, the requirements of

that section are not complied with in terms of specification

of police responsibilities and duties in accordance

therewith. Specifically, there is no provision therein

directing the Police Service to act in the manner

legislated, nor is there an extended expiry date specified

with the result that any such s.36 Order would generally

terminate within 6 months of the date on which it is made.

 

 

 

The Applicant argues that when an Order is made under 5.36(2),

s.36(4) which sets out the Police's statutory duties, is invoked.

I agree; and I also find that s.36(i) which refers to Police

responsibilities takes effect as well. Subsections 36(4) and

36(3) respectively read:

 

36. ...

 

(4) Duty to act - The police force directed to act by an

order under subsection (2) shall do all things reasonably

able to be done to locate, apprehend and deliver the child

in accordance with the order.

 

(5) Entry and search. - For the purpose of locating and

apprehending a child in accordance with an order under

subsection (2), a member of a police force may enter and

search any place where he or she has reasonable and probable

grounds for believing that the child may be with such

assistance and such force as are reasonable in the

circumstances.

 

 

 

These sections are not worded so as to require, in an Order, the

expectations of the Court, before the fact, or to specify the

duties and responsibilities of the Police in assisting a party in

enforcing access. Certainly, the Court is open to consider giving

specific directions to facilitate enforcement in its initial

Order if sufficient particulars are available to it at that time,

but such directions are not required for the Order to be valid.

Indeed, it is virtually impossible for the Court to anticipate

the precise way in which Police assistance will be necessary.

Subsections (4) and (5) give the Police discretion to rely on

their own expertise to determine what reasonable methods are to

be used in enforcing access. Given the indefinite number of

situations with which the Police may be faced in implementing an

enforcement Order, the Court is not in a position to set out

standard criteria by which the Police must act in every

circumstance. It is possible, however, that the Court may be

called upon after the fact, to determine what was "reasonable in

the circumstances" or what things were "reasonably able to be

done". There is no doubt, however, that any discretion used by

the Police does not include an initial refusal to the request of

an aggrieved party to make reasonable efforts to assist that

party in enforcing access.

 

 

 

4. Lack of Expiry Date as Required by Section 36(7)

 

36. ...

(7) Expiration of Order. - An order made under subsection

(2) shall name a date on which it expires, which shall be a

date not later than six months after it is made unless the

court is satisfied that a longer period of time is necessary

in the circumstances.

 

 

 

The question is whether or not the use of the word "shall" is

directive or imperative. The present law seems to suggest that

where making a term "imperative" will in fact prevent the

enforcement of the objectives of the Order, the word "shall"

shall be construed as directive and the Order will still be

enforceable. In the case of Reference re Manitoba Language Rights

[[1985] 4 W.W.R. 385 (S.C.C.), the Court quoted at p.401 from the

case of Montreal Steel Railway Co. v. Normandin, [[1917] A.C. 170

at 174-75 (P.C.), where, in determining the question of whether a

"term" should be considered "directory" or "imperative", the

Privy Council stated as follows:

 

...When the provisions of a statute relate to the

performance of a public duty and the case is such that to

hold null and void acts done in neglect of this duty would

work serious general inconvenience, or injustice to persons

who have no control over those entrusted with the duty, and

at the same time would not promote the main object of the

Legislature, it has been the practice to hold such

provisions to be directory only.

 

 

 

In the case before me, I find that by permitting the Police to

rely on the omission of a specific expiry date under s.36(7), it

would seriously inconvenience the Applicant and would not promote

"the main object of the Legislature", which is the enforcement of

access Therefore 1 hold that the term "shall" in this particular

instance is directive and does not prevent the enforcement of the

Order. In any event, the Police were first asked to enforce the

provisions well within the initial six month period. Moreover,

since the motion for direction of the Order was brought beyond

the six month period and as a result of undue delay by the

Police, I find the Police cannot benefit from the delay of their

own making. However, I also find that it is reasonable for the

Order to be governed by an expiry date and I will amend the Order

to include a paragraph which will specify' a period of time

during which paragraphs 10 and 14 of the Order will remain in

force. The variation will be as follows:

 

14.(b) THIS COURT FURTHER ORDERS that paragraphs 10 and 14

of the Order will remain in effect until June 6, 1997.

 

 

 

5. Order Imposes the Use of Unlimited and Continuous Police

Resources which may be Inappropriate Method of Enforcement in

Certain Circumstances.

 

Paragraph 8 of Officer Swire's affidavit reads as follows:

 

8. In addition, it is my respectful submission that

paragraphs 10 and 14 contain a broad statement imposing

potentially unlimited and ongoing requirements on the Police

Service. I verily believe and respectfully submit that

utilization of police officers and police cruisers for the

purpose of enforcing the access portion of this Order would

likely result in resources and facilities being unavailable

to carry out other assigned and statutory police duties and

that in the circumstances of this case, including the age of

the child involved, it may be more appropriate to use other

methods for this purpose.

 

 

 

It is clear that an Order under s.36(2) is an Order of last

resort. Courts must make such Orders sparingly and in the most

exceptional circumstances. It is an Order that can only be made

once a court is satisfied that a party is unlawfully withholding

a child from a person entitled to custody of or access to the

child. It is a finding which can be based on either a single

incident of withholding or on a pattern of withholding even where

that pattern has been interrupted by some resumed access.

Subsection 7 of section 36 provides for a period of time within

which the Police may be called upon to assist an aggrieved party

in enforcing access. The purpose of that section is to enable the

aggrieved party to avoid the expensive process of returning to

Court for a finding of unlawful withholding on each and every

occasion that the party is being denied access. Ideally, the

making of the Order should be effective enough to persuade the

`wrongdoer to cooperate. However, that is not always the case and

the aggrieved party must call upon the Police.

 

As to the concern about whether the Order suggests the imposition

of unlimited and continued use of Police resources, I can only

say that the Order is consistent with the Legislation and is well

within the parameters of the statute. when a Court makes an Order

under this section it is assumed that the Court has carefully

assessed the circumstances and that a s.36(2) Order is an

appropriate method of enforcement. The Legislation must take

precedence over the issue of limited resources which is an

administrative matter between the Police and the Solicitor

General. However, as I have already explained previously in this

decision, subsections (4) and (5) give the Police discretion in

determining the appropriate method of enforcement and the most

efficient use of the resources.

 

 

 

Re: Specific Access

 

If the parties disagree with my interpretation of Madam Justice

Wallace's Order concerning the access schedules, they may make

arrangements to speak to me.

 

 

 

(signed)

The Honourable Mr. Justice R. J. Mazza

 

RJM:cmr