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
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.(b) the court is satisfied that no other order under this Act will be sufficient to secure the person'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
Let me summarize.(iii) a fine not exceeding $5 000.
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:
- you are entitled to parenting time or contact;
- the other person is a guardian of the child;
- the guardian has wrongfully withheld the child from you, contrary to an order for parenting time or contact; and,
- 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:
- you are the child's guardian;
- the other person has contact with the child;
- the other person has failed to comply with a court order that would require the person to return the child to you; and,
- 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.
