Judgement

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.

------------------(end of page)------------------

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


To read the newspaper article published in the Hamilton Spectator, about this judgement, click here.