22 September 2013

Police Enforcement Under the FLA: A brief refresher

The issue of police enforcement of rights of parenting time or contact has come up a few times this last week, albeit in slightly unusual circumstances, and it seems that the issue could use some discussion.

Under the old Family Relations Act, you could ask for a "peace office enforcement" order under s. 36 if there was some concern that a person might fail to return the child at the scheduled time. Section 36 said this:
(1) If custody of a child is awarded to a person by an order made or enforceable under this Act and the person is denied the exercise of custody, a court may, on an application made without notice to any other person, order that the child be apprehended by a peace officer and taken to the person awarded custody.
You would also use this section to enforce an order for access made under the federal Divorce Act, which leaves enforcement problems to the provinces.

The same sort of order is available under s. 231 of the new Family Law Act, but there's a catch which I'll get to shortly. Section 231 says this:
(4) If satisfied under section 61 [denial of parenting time or contact] that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, a court may make an order requiring a police officer to apprehend the child and take the child to the person. 
(5) If satisfied that a person having contact with a child has wrongfully withheld the child from a guardian of the child, a court may make an order requiring a police officer to apprehend the child and take the child to the guardian.
This sort of looks like the old Family Relations Act, just split into one term that applies when someone has been denied parenting time or contact and another term that applies when someone with contact refuses to give the child back, but there are some very important differences. First, there's the catch I mentioned. Section 231 also says this:
(1) This section applies if
(a) a person fails to comply with an order made under this Act, and 
(b) the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance.
In other words, before the court can even think about making a police officer enforcement order under s-s. (4) or (5), it first has to be satisfied that (a) there has in fact been a breach of an order, and (b) there is no other means to secure the compliance of the breaching party. Unlike the Family Relations Act, you don't get to ask for the order in anticipation of a potential breach of a court order, there must have been an actual breach, and on top of that you also have to convince the court that nothing else will secure the party's compliance.

It gets somewhat more challenging for applications under s. 231(4), because to get a police officer enforcement order for a denial of parenting time or contact, you must firstly prove that there has been a wrongful denial of parenting time or contact under s. 61(1) — which the other side can argue is not wrongful for one of the reasons set out in s. 62(1) — and you must secondly prove that the remedies for the wrongful denial of parenting time or contact provided in s. 61(2) either haven't worked or won't suffice to secure the other party's compliance.

For applications under s. 231(5), although you don't need to jump through the s. 61(2) hoop — s. 61 only applies where a guardian has withheld parenting time or contact, and someone who has contact is not a guardian — you will need to prove that the general enforcement remedies available under s. 230(2) either haven't worked or won't suffice to secure the other party's compliance. Section 230 says:
(2) For the purposes of enforcing an order made under this Act, the court on application by a party may make an order to do one or more of the following:
(a) require a party to give security in any form the court directs; 
(b) require a party to pay
(i) the other party for all or part of the expenses reasonably and necessarily incurred as a result of the party's actions, including fees and expenses related to family dispute resolution, 
(ii) an amount not exceeding $5 000 to or for the benefit of the other party, or a spouse or child whose interests were affected by the party's actions, or 
(iii) a fine not exceeding $5 000.
Let me summarize.

Police enforcement where guardian withholds parenting time or contact, s. 231(4)

You cannot ask for police enforcement in anticipation that the guardian will withhold parenting time or contact.

Where a guardian has withheld parenting time or contact, to obtain a police enforcement order, you must prove that:
  1. you are entitled to parenting time or contact;
  2. the other person is a guardian of the child;
  3. the guardian has wrongfully withheld the child from you, contrary to an order for parenting time or contact; and,
  4. the specific enforcement remedies under s. 61(2) either haven't working in the past or won't work now, and no other order will secure the guardian's compliance.
Police enforcement where person with contact refuses to return child, s. 231(5)

You cannot ask for police enforcement in anticipation that a person entitled to contact will fail to return the child to a guardian.

Where a person with contact has failed to return the child to a guardian, to obtain a police enforcement order, you must prove that:
  1. you are the child's guardian;
  2. the other person has contact with the child;
  3. the other person has failed to comply with a court order that would require the person to return the child to you; and,
  4. the general enforcement remedies under s. 230(2) either haven't worked in the past or won't work now, and no other order will secure the person's compliance.

13 comments:

  1. What about police enforcement when one parent breaches the court order that orders "No contact" by constantly emailing and phoning with threats of going back to court and changing parenting times at her whim.?

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    1. This sounds like a breach of a protection order. If this is the case, you can call the police to lodge a complaint, however it can be important to consider the impact of the police complaint on the resolution of your family law case. This can be difficult to balance and you should speak to a lawyer to get some proper legal advice. However, regardless of the status of your family law case, if you feel that your safety or the safety of children is in danger, the police should be called.

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  2. This post comes in 2 or 3 concurrent post please read all and then offer info please.
    I got an protection order against my childrens narcissistic child abusive alianative whom had stabed a man 5times while visiting his children,to which minstry involvement and a trial ,to where by the father floors my poor legal councle by admiting to crime and because we were scare not to say anything about the incident there has not been charges laid as yet (2010 incident) fathers succeeds and although he confesed which was nit reiderated heard onky once last day,along with unrebukable purjury(asked3times if he had criminal record whichin recess to decision i ran to double check the data base and just as i thought he does have past serious priors)

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  3. i did not nor u know if something could be still done about the decision awarding him guardian,and crediting the text book narcissus al the whileplanly deciving the court for this result my children reports reflect the children being yelled at and foster parents siting abuse in exchange to father. All was washed under the bridge. If u ask what type of parent am i one who is confused and on a quest to have my childrrn wishes and needs to be with a early childhood educated, who studied first in law and phycology and completed the drug and alcohol councilor program at vcc earlier this year. I know without a doukbt what is in the best interest for children abd most definatly mine,and thats to nit be alienated from there other siblings,grandparents and there friends or mother. Which the father succeeded.I was granted parenting time ive tried everything since aug 19 2013 court decision to whas was the fist dicision made under new fra. To which if all evidence and testimony were to be know those facts heard by a much stronger councle no doubt i would not be here today nor my children ordered to live with the abuse and abuser. I am to to have supervised access and telephone and web communication at his discresion but at my cost (i born with a conjenital physcle disability that is limiting at times but am still healthy and am still ablebodied currently and has not yet effectied or limited my care of my children and ex )(on finacial disabilty) so i got help paying for a mfcfd certified councler associate to supervise visits,to which father wS overheard yellinv and swearing to my child who answered the phone. Father refused that access and offered mothers day visit at old mi istry office. 1 visit in yr. I heard from my regular phone contact with the kids they didng want to move away to the island. So ive had enouvh trying to figure out what to do being that my case has so much wrong going on i filed for a protection order with guardian and parenting and got a court protection order that says he is not to move with my children out of the lower mainland. To which the order states falls under the criminal code and maybe enforcable whether or not made aware and tits a punihable crime to which disobeying the order will result in jail imprisonment or fine. I had order amended to state i am tk be allowed unsupervised parenting time access . I served the order via web communication,and later had it hand served. None the less the narcissus difies order and moves to the island .ii contacted the police to which the victoria lapd located them and i was told by voice mail that the police talked to father and he claimed he was unaware of order

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  4. They said they kids were fine, they never spoke to the children (the children stated in one of the 3 phone calls allowed in the lazt 6 months,not even on dec 2&7the two boys birthday was there a phone call)(pretty extreme and harse. I have never thoughg that aparent could be capabile of such to innocent child,so we adults dont see eye to eye so i agree to disagree and be civilized for the interezt of our children and just cannot rather uuse our children as pawns to hurt me .) The police said all was fine and that they decided not to bother with enforcement of order and if i wish to i could contact them. So hurt and lost and discourged feeling helpless even last year i contact the justic councler andbut mediations to mediate and as there training for this type of fra court did not igsist till jan 2014 the were no help and rejected did not go back for assistance Im fed up furious and sick at time passing but I believe that for them I must keep trying and fighting for there best interest so now that the police confermed he is in breach of order to which he is now been made aware,i ve allowed more than adequate time for him to move back and not be in breach and or respond to order. He has done neither in 6 months . Any suggestions on what i should be doing or how to mKe the police take this seriously and enforce against the confjrmed breach .......please we could all the prayers and advice to get these kids back in safe loving and non abusing family home the childrens secret wish they disclosed was on there santa wish list first "to go live mommy" this makes me cry and fight and beg for help for there nigbtmare and mine to finaly come to close

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    1. Thank you very much for your comments. I don't really understand what info you want me to offer, but I can tell you that you can apply to family court to change a family court order if there has been a change in circumstances affecting the children's best interests since the order was made. Protection orders are enforced by the police; orders like non-removal orders are typically not enforced by the police and can be enforced by making an application to family court.

      You should speak to a lawyer in your area to get legal advice about what you can do. You can find a lawyer through the CBA's Lawyer Referral Service. They will put you in touch with a lawyer who will give you 30 minutes for $25. If you can't afford a lawyer, you should contact Access Pro Bono.

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  5. We have a court order that states we have parenting time of my two step-sons over the holidays this year. The mother is refusing to drive them down, despite the order saying she is required to. She blamed late child support payments and not being able to afford the drive from Penticton to Nanaimo. The child support arrears have since been paid in full and she still refuses. What can be done or what has been done in these situations

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    1. I'm afraid that I can't give you legal advice. However, what I can say is that the Family Law Act contains provisions that allow the court to order make-up time and other remedies when parenting time has been withheld. Other parts of the act provide other ways of enforcing orders. The rules of both the provincial court and the supreme court allow someone to go to court on no notice or little notice to the other side to get an order in urgent circumstances.

      If an order about parenting time over the holidays has been breached, the person entitled to parenting time could apply to court to enforce the parenting time order, including an order that the police to enforce the order. Assuming that the courts are open tomorrow, the application could be made then. If the courts are not open tomorrow, the person entitled to parenting time may be stuck applying for make-up time and for the repayment of expenses.

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  6. What if there is a medical note from physician stating "child is not able/healthy enough to go on visits until further notice" because the emotional trauma has developed into physical issues. Can rcmp overrule that note and remove child? I am scared because my child has threatened to kill them self if forced to go and has resulted in being diagnosed as high stress. MCF was also contacted via health authorities regarding the disturbing drawings and graphic nightmares. Child is now 10

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    1. Really, it's up to the RCMP. A letter from a doctor is just a letter; the cops might say "hey that sounds reasonable" and leave your child with you, or they might say "we are bound by a court order to enforce this person's parenting time."

      If you are scared that your child is going through such torment, you really need to get to court to vary the order that's causing him or her such trauma. That's your solution, not hoping that the RCMP exercise some discretion because of the doctor's note.

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    2. The original person that posted this question is impersonating the mother in this case. I have solid evidence this is true and fact. If you require such proof I can contact this blog thru email thank you

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  7. Can you tell me if police enforcement is applicable even if the child does not want to go back to the other parent? My son is 13 yrs old and no longer wants to live with his mom. His mom had told him a few months back, "if you want to live with your dad, go live with your dad." She dropped him off at my house and that afternoon, I went to her house with my son and told her that our son would like to take her offer. She then said ok, I will let you stay with your dad if it makes you happy. Then the following day she changed her mind. 4 months has passed now and she is now asking me to sign a police enforceable agreement that our child will live with both of us equally 50/50. But my child does not want to live with his mom anymore.

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    1. If you meet the criteria to get a peace officer enforcement order under the extraordinary enforcement provisions of the Family Law Act, you can apply for the order and a judge may very well give it to you. The thing, though, is that the court will pay a lot of attention to what your son wants, and may not be willing to make a peace officer enforcement order. Even with an order like that, the police may be reluctant to enforce if the enforcement is clearly contrary to the child's wishes.

      Agreements are not police enforceable. They are private contracts between two or more people. They can be police enforceable if they are filed in court, and an application is made for a peace officer enforcement order.

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