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Epstein’s This Week in Family Law | Custody order

Epstein’s This Week in Family Law | Custody order

Rights of a child and a police enforcement clause in a custody order discussed in recent parental alienation case.

Epstein’s This Week in Family Law

Authors/editors: Philip Epstein

Parental Alienation - Rights of a 16-year-old - No Custody Order Made

L. (N.) v. M. (R.R.), 2016 CarswellOnt 1639 (Ont. S.C.J.) - Perkins, J. This was a hard fought alienation case in which it was acknowledged that a child over 16 was refusing to have contact with his father and the police were refusing to enforce a prior court order to deliver the child up to the father.

In a very lengthy and detailed judgment Justice Perkins of the Ontario Superior Court of Justice, who is no stranger to these kinds of problems, extensively reviews the law about the consequences of alienation, how to deal with children who are 16 and 17-and-a-half, residential workshops, police powers, obligations on the police to enforce orders and delivers some lessons about process in these difficult cases.

There is a useful discussion about motions involving a police assist. Justice Perkins reviews the relevant sections of the Courts of Justice Act, i.e. section 141, and section 36 of the Children’s Law Reform Act.

The Chief of Police who was made a party to the motion argued that the order should not include a police enforcement clause at all and noted that the order did not have an expiry date. As Justice Perkins notes: “it is important for parties and judges to remember that any order made under the CLRA section 36 must contain an expiry date and the court must put its mind to what the appropriate time limit is when making any such order even if it is unopposed.”

Justice Perkins notes:

For an excellent review of the factors to consider in determining whether to make an order under CLRA section 36, and the cases on the issue in Ontario and elsewhere, see Patterson v. Powell, 2014 ONSC 1419 (CanLII). At the risk of oversimplifying Pazaratz J’s very detailed and thoughtful decision, I note the following principles from it:

• Section 36 of the Children’s Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras. 14-15)

• Section 36 does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool.” (Para. 16) • Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras. 21-22)

• Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras. 23-24) • Police should be served with notice, if a party proposes a broad order under section 36 (4) that they “do all things reasonably able to be done”. (Para 30)

• Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras. 44-62)

• Chronic non compliance with a custody or access order is “likely . . . a problem that police can’t fix anyway.” (para 74) As Pazaratz J noted, there 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. Further, section 36(3) assumes that a motion for a police enforcement clause will be made on notice, at least to the other party. The section says the order may be made without notice if “the court is satisfied that it is necessary that action be taken without delay.” This is a different test from the usual one for motions without notice as articulated in Rule 14(12) of the Family Law Rules.

Justice Perkins was satisfied, after an exhaustive review of the facts, that whether the children were acting under the control or influence of their mother, or acting independently, they were demonstrably unwilling to be delivered into the father’s care and that it was fruitless for the police to continue to deliver the youth to the father only to have him leave again. In the particular circumstances of this case, Justice Perkins recognized that there was no useful point to the police enforcement clause and it should be removed. Justice Perkins then proceeds to what is in essence a legal treatise on the children’s rights at common law and under legislation. This takes place because the children assert that they have a right to determine with whom they will live and on what terms they will have contact with their father. They say they rely on section 65 of the Children’s Law Reform Act and this leads Justice Perkins to, on his own, researching the issue of children’s rights.

I do not repeat it here but it is a worthwhile review of the governing principles and I recommend it to you because I have not seen this topic covered so exhaustively before.

In the end, Justice Perkins sadly 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 that 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.

Justice Perkins was convinced that the younger son, who is now 16, would not comply with any court order and would go into hiding again and drop out of school. He thus ultimately orders that:

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.

To make it even clearer Justice Perkins adds:

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.

A very important contribution to this area of the law and a very impressive piece of work by Justice Perkins.

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