RELATED CASES AND POSTS
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.The judge declined to make the order without an explanation, even though the relief was sought by consent, and asked the parties and their lawyers to appear in court to explain why the clauses were necessary. The argument which ensued plainly gave Justice Pazaratz 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 his decision in this case should be required reading for counsel advising on potential applications for peace officer enforcement 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. However, despite the gravity of such concerns, the judge observes that peace officer enforcement clauses are actually rather commonplace:
"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.Of course, as Justice Pazaratz observes, this begs a number of fundamental questions:
"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'."
"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:
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 to court as soon as possible.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?"
"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 asupervised exchange facility. It might be inconvenient for the parents, but it would be a lot less traumatic for the child.
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 (emphasis added):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."
"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