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When do the police have an obligation to enforce the terms of a custody/access order?

In a recent family court case in Ontario, the Toronto police brought a motion to remove the police access provisions contained in a custody and access order. This motion was filed only 6 days after the original order (on consent) was made.

Unless you have a clause in an order or an agreement requiring police enforcement, the police are not obliged to enforce the terms. Even with the inclusion of such a clause, as this case demonstrates, police enforcement can be highly problematic.

In an effort to have the police enforcement clause removed, counsel for the police advanced a number of arguments. First, they explained that since the order didn’t contain any expiry date that it was not in compliance with s. 36 of the Children’s Law Reform Act- the provision that gives police the authority to enforce custody and access orders in prescribed situations. Section 36 allows police to apprehend a child and deliver the child to the applicant if an individual is found to be “unlawfully withholding a child”. The responsibility of the police to enforce custody and access orders in these circumstances is meant to be time limited, not ongoing, and should contain an expiry date, generally not later than 6 months from the date of the order.

Secondly, in this case, the 16 year old child was voluntarily refusing to see his father. Accordingly, the police took the position that the mother could not be considered to be “unlawfully withholding” him. The judge agreed with the police on this point.

As the order had been issued on consent, the police were not consulted in any way about the terms of the order, even though they were the ones being expected to enforce it. While this is not unusual in itself, considering the age of the child and the fact that the parties knew the child was unwilling to see his father, the parties should have turned their minds to the problems inherent in trying to use the police as an enforcement mechanism.

Since you cannot physically compel a 16 year old to see his father, the judge decided it was best to remove the police enforcement clause and change the custody order altogether.

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