30 April 2014

Peace Officer Enforcement Orders: Ontario Court Demands Alternative Remedies

"Peace officer enforcement" orders, sometime called police officer enforcement clauses, are frequently used in family law cases when one or both parties anticipates problems enforcing a parenting schedule in the future. These orders are provided for in the domestic relations legislation of most provinces.

The idea with orders like these is that in the event a child is wrongly withheld from a parent, the aggrieved parent will phone the police, the police will swoop in on the strength of the order, take the child and return the child to the parent who is entitled to be with the child. Unfortunately, it rarely works this way in real life. In an article I wrote for Canadian Family Law Quarterly that surveyed the views of family law lawyers across Canada, lawyers complained that: police sometimes refuse to enforce access orders, even when the order directs them to enforce it; some departments have a policy against enforcing access orders; police will generally do what they can to avoid enforcing access orders; and, the courts rarely do anything significant by way of follow-up, such as finding a parent in contempt of court. (For those of you with access to HeinOnline, the article is called "Enforcing Orders for Access" and the cite is 32:2 CFLQ 173.) The frustrations of lawyers are echoed by both judges and parents.

Patterson v Powell

In Patterson v Powell, Mr. Justice Pazaratz of the Ontario Superior Court of Justice was asked to endorse a final order that the parties agreed to, drawn from minutes of settlement executed a few months earlier. The order included these clauses:

12. The Hamilton Police Service, OPP, RCMP or any other police force having jurisdiction shall enforce the terms of these Minutes of Settlement. 
13. If either of the parties or any other person on their behalf, breaches any of the terms of these Minutes of Settlement, then a Peace Officer shall provide assistance to ensure that the offending party complies with its terms. Before enforcing the terms of these Minutes of Settlement, a Peace Officer must first ensure that the party has been served with a copy of these Minutes of Settlement. If not served, the party must be shown a copy of the Minutes of Settlement by the Peace Officer and be given a reasonable time to comply with the terms. If the party fails or refuses to comply with these Minutes of Settlement the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms.
(This is pretty much along the lines of what would be said in a British Columbia peace officer enforcement clause under s. 231 of the Family Law Act.) The judge declined to make the order without an explanation, even though everyone agreed to it, and asked the parties and their lawyers to appear in court and explain why the clauses were necessary. The argument which ensued plainly gave the judge the opportunity to discuss, in a larger, more principled manner, the problems with peace officer enforcements orders generally and the rare circumstances in which such orders should be made, and Justice Pazaratz's decision in this case should be required reading for anyone thinking about applying for a peace officer enforcement order. 

Justice Pazaratz begins his discussion on the issue noting the two circumstances in which peace officer enforcement clauses are included in court orders:

"11 The first deals with the present: An existing situation. It usually involves some urgency (for example, an abduction) where a child needs to be retrieved from one party and transferred to the care of another. The objective may be to enforce immediate compliance with an existing order, or to quickly remove the child from potential harm or threat of abduction. 
"12 The second scenario deals with the future: a more general concern that on some unspecified date a party may not comply with a custody or access order, and that police assistance may be required to ensure the scheduled exchange of a child from one party to another. Typically, the extent and frequency of such police involvement cannot be determined ahead of time."
In my experience, this is entirely accurate. 

The problem with concerns about the future, even when they are based on past instances of non-compliance or past threats to withhold the child, is that they anticipate that someone will breach the order — a very serious action with potentially serious consequences. However, the judge observes that peace officer enforcement clauses are actually rather commonplace. (This was true in British Columbia too under the old Family Relations Act, however under the new Family Law Act, peace officer enforcement clauses are an extraordinary remedy reserved for circumstances when there has already been a breach of an order and the court is satisfied that nothing else will secure the breaching party's compliance.) Justice Pazaratz writes:

"17 ... As in the case before me, many lawyers and parties seem to regard such requests as both perfunctory and harmless. The implicit assumption seems to be that while all court orders must obviously be followed, there is reason to doubt that one or more of these parties will follow this particular court order.

"18 In that context, the police enforcement clause takes on the nature of an instant remedy for anticipated future contempt of court. A fail-safe precautionary measure 'just in case' somebody misbehaves ... the parties in this case want to know that there will be 'immediate consequences by calling police'."
Of course, as Justice Pazaratz observes, this begs a number of fundamental questions:
  • Why does the court make orders about children if it is not confident that the orders will be obeyed?
  • Why would the court give custody or access to a parent if it believes that the privilege will be abused?
  • Why aren't creative alternatives to access problems — like parenting coordination, reducing the number of exchanges and requiring the use of intermediaries — required when compliance are anticipated instead of peace officer enforcement clauses?
  • How does the court balance the benefit of enforcement against the distress caused to the children when the police respond to a dispute between their parents?
Dwelling further on this last point, the judge notes that children's perceptions of police will impact on their response to police intervention. Younger children, says Justice Pazaratz, know that the police deal with "bad people" and "sometimes take people to jail," which may cause them to worry that a parent is in trouble with the police. Older children may be embarrassed by the police presence, resent their parents for letting things get out of hand or feel increased pressure to ally with a parent.

This leads to the court's first conclusions on applications for such orders (important bits in bold):

"24 ... when ongoing police enforcement clauses are requested as a long-term compliance strategy ... courts should insist that parties take available time to fully canvass less destructive and more creative (perhaps even therapeutic) alternatives. Before considering a long-term or permanent police enforcement clause (presuming the latter is even available as an option) courts should require evidence of the potential positive and negative impact of police intervention on each member of the family unit — most particularly, the children themselves: 
a. Has the child already experienced police involvement in family disputes? 
b. How is the child likely to perceive or react to future police involvement? 
c. Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other? 
d. Does the child have any special needs or vulnerabilities? 
e. Have any members of the family had involvement with the criminal justice system or child protection authorities? 
f. Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges? 
g. How are these particular parties likely to respond to interaction with police? Could any of the parties be regarded as being 'anti-police' — such that police intervention might inflame, rather than defuse the situation? 
h. Are there mental health issues the police may have difficulty recognizing or responding to? 
i. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes? 
j. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy? 
"25 Other questions need to be addressed: 
a. How often and how long is the police enforcement clause to be invoked? For a specified period of time, or indefinitely? Once or on an unlimited basis? Monthly? Weekly? Daily? Every visit? 
b. Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?"
The judge's second conclusion, at paragraphs 30 to 33 of his judgment, is that if the police are to be involved, they should be served with notice of the application and, whether given notice or not, when such orders are made the police have standing to apply to court to vary them or set them aside. However, if the police have any concern with such orders, they have an obligation to bring the matter, and the parties, to court as soon as possible.

Returning to the potential harm to children resulting from peace officer enforcement orders, Justice Pazaratz reviewed the principles enunciated in some 40-odd decisions on applications for peace offer enforcement orders from across Canada — which alone make His Lordship's judgment worth reading — for the propositions that:
  1. Parental conflict is a major source of harm for children. 
  2. Children should generally be protected from the "drama" of police enforcement of a parenting schedule.
  3. The applicant for peace officer enforcement orders must prove that the order would be in the best interests of the children.
  4. Factors such as a threat to the safety of the children or a breach of the peace may suggest that such an order should be made.
  5. Peace officer enforcement orders may have a negative impact on children, and may frighten or traumatize them. It is not in the best interests of children that police be in attendance at exchanges between parents.
  6. Such orders are an "undesirable tactic to give to either parent."
  7. Peace officer enforcement orders are exceptional orders and should be made sparingly and as a last resort only. The court may refuse to grant such orders even when both parties consent to the order.
  8. The court may, on the other hand, order that police must not be involved in access disputes.
What is to be done, then, when a parent breaches a parenting order? Says the court:
"73 If the non-compliance is isolated or rare, perhaps we should afford an opportunity for explanation and review before presuming the worst ...
"74 And if the non-compliance is chronic, we're likely dealing with a problem police can't fix anyway. At best, police enforcement amounts to a band-aid solution. If a parent is consistently defying a court order, there's a good chance the order itself needs to be changed to deprive the offending parent of the opportunity for more unilateral action or defiance.
a. If access is being denied, perhaps custody needs to be changed
b. If access is being abused, perhaps it should be reviewed, supervised or suspended
c. If neither party can behave themselves during access exchanges, perhaps both parties should have to attend a supervised exchange facility. It might be inconvenient for the parents, but it would be a lot less traumatic for the child. 
d. If we don't have confidence the parties will comply with final orders, perhaps we shouldn't be making final orders. Sometimes parents are motivated to behave if they know they'll be coming back to court — especially if they know they will be returning to see the same Judge."
After these comments on the options available to creative decision makers, Justice Pazaratz reaches his third set of conclusions, on the court's larger role in family law matters as the custodian of parties' disputes, burdened with a responsibility that extends beyond the moment of judgment to contemplate the future:
"77 ... judges have an obligation to craft comprehensive, holistic and durable court orders which have a likelihood of success and compliance. High conflict files need to be identified and given special attention. While disputes may inevitably arise, courts have a responsibility to anticipate problems and build-in dispute resolution mechanisms — rather than hand the mess over to police to sort it out. 
"78 If a judge anticipates future disputes or non-compliance, the court may wish to remain seized of the matter, and establish a framework to quickly deal with disputes — including contempt proceedings — to ensure that the parties clearly understand expectations and consequences. 
"79 In the absence of ongoing judicial intervention, and serious consequences for disobedience of court orders, long-term police enforcement clauses may prove to be both ineffectual and potentially counter-productive. Non-compliant parents are unlikely to be influenced by repeat police visits to their homes; but children are likely to be deeply (and negatively) influenced."
Needless to say, the parties' consent application for a peace officer enforcement order was dismissed as Justice Pazaratz was not prepared to "rubber stamp" — his words — their minutes of settlement.
"82 While it's reassuring that neither party wants to have to come back to family court, it would be more reassuring if they could agree upon a civilized and child-focussed method of addressing custody/access problems which they seem to anticipate."
Conclusion

This judgment is one of those rare, wonderful judgments, treatises really, where the facts of a particular application motivate a judge to provide a general discussion on a particular issue or problem, often one that has been on the judge's mind for some time. Similar judgments that spring to mind are the decision of Mr. Justice Bouck of the British Columbia Supreme Court on the evils of summary trials in Chu v Chan, and the decision of Associate Chief Justice Rook of the Alberta Court of Queen's Bench on freemen-on-the-land in Meads v Meads.

In Patterson v Powell, Justice Pazaratz demands that the bench and bar pay much greater attention to the frivolous use of peace officer enforcement orders. He observes that such orders skeptically imply that the parties will be unable to work through their disagreements and that one or both of them are unlikely to comply with its terms, and that when peace officer enforcement orders are made, their execution risks entrenching the parties' conflict and causing serious, long-lasting harm for the parties' children. Where problems surrounding a parenting schedule seem likely, Justice Pazaratz asks that alternatives to peace officer enforcement be considered first, including requiring parenting coordination, supervised exchange of the children and the court seizing itself of future disputes; peace officer enforcement orders must be reserved as a last resort.

When the court is asked to make a peace officer enforcement order, the applicant should provide evidence that:
  1. there is an immediate problem that the police must rectify;
  2. the safety of the children is threatened; and,
  3. the order is in the best interests of the children rather than the convenience of the parties.
The court hearing the application must consider the following circumstances in deciding whether to make the order sought:
  1. Has the child already experienced police involvement in family disputes? 
  2. How is the child likely to perceive or react to future police involvement? 
  3. Will police presence during access exchanges increase pressure on children to ally themselves with one parent or the other? 
  4. Does the child have any special needs or vulnerabilities? 
  5. Have any members of the family had involvement with the criminal justice system or child protection authorities? 
  6. Have there been previous police calls to the home relating to other complaints, such as domestic violence? Will this impact on dynamics if police attend for a more benign peacekeeper role during access exchanges? 
  7. How are these particular parties likely to respond to interaction with police? Might police intervention might inflame, rather than defuse the situation? 
  8. Are there mental health issues the police may have difficulty recognizing or responding to? 
  9. Is there any history of either party making unfounded complaints to police or other community agencies, for malicious or strategic purposes? 
  10. Will police involvement facilitate or compound parental alienation? Will calls to police be used to manipulate children, instill fear, or garner sympathy? 
  11. How often and how long is the police enforcement clause to be invoked? 
  12. Should a party invoking a police enforcement clause be required to return the matter to court, or at least initiate a request for some alternative dispute resolution?
Although British Columbia's new legislation imposes important additional requirements that must be met before peace officer enforcement orders are made, Justice Pazaratz's learned and sensitive discussion on the subject is an important reminder about the questionable utility of such orders and of the potential harm they may cause to the parties and their children.

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