Duff v James 2017 ONCA 606
This case concerns the scope of a judge’s jurisdiction under section 36(2) of the Children’s Law Reform Act which relates to directing a police force to enforce a child custody order. The Court of Appeal unanimously decided that the motion judge made no error in ordering that the Ontario Provincial Police (OPP) enforce the child access order instead of the Waterloo Regional Police Services (WRPS).
This appeal arose from a high-conflict custody dispute concerning the parties’ 10-year old son, whereby the motion judge found that the police force that would ordinarily be called upon to enforce the order – the WRPS – had an inherent conflict of interest and had previously failed to provide adequate police services for this family. The conflict of interest arose from the fact that the father was a member of the WRPS. As such, the motion judge ordered that pursuant to section 36 of the CLRA the OPP were directed to locate, apprehend and deliver the child to the parent entitled to custody.
The OPP then brought a motion to vary this order, and motion judge refused same. The motion judge relied on the Police Services Act, and on the courts’ parens patriae jurisdiction to order the OPP to provide the needed assistance.
The OPP and WRPS each appealed this order.
The OPP and WRPS raised several arguments about why the motion judge and court had no authority to impose on the OPP an obligation to enforce the custody and access order. The Court of Appeal however rejected all of their arguments.
The Court found that although a judge is not required to designate a police force – that typically, it is preferable to not specify a specific police force, in exceptional circumstances such as in this case, where the municipal police force is unable to act or does so unsatisfactorily, section 36(2) of the CLRA permits a judge to specify that the OPP assist and enforce the Police Assistance Provision.
The Court further noted that if the child were outside the territory of the WRPS, there would be no reason why the OPP would be preferred over the municipal force in that region. Thus, the Court reasoned that it would have been most effective if the motion judge had ordered that the OPP would only be required to provide assistance if the child was found within the region policed by the WRPS.
Although the facts of this case are rather specific, the Court’s reasoning could be useful for judges and lawyers dealing with a Police Assistance Provision in a custody and access order.