“For an excellent review of the factors to consider in determining whether to make an order under CLRA section 36, and the cases on the issue in Ontario and elsewhere, see Patterson v Powell, 2014 ONSC 1419 (CanLII). At the risk of oversimplifying Pazaratz J’s very detailed and thoughtful decision, I note the following principles from it:
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- Section 36 of the Children’s Law Reform Act is available to address a present and existing problem, not a future or potential problem. (Paras 14-15)
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- Section 36 does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool.” (Para 16)
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- Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved. (Paras 21-22)
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- Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoing enforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24)
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- Police should be served with notice, if a party proposes a broad order under section 36(4) that they “do all things reasonably able to be done”. (Para 30)
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- Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to be required in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62)
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- Chronic non compliance with a custody or access order is “likely … a problem that police can’t fix anyway.” (Para 74)
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As Pazaratz J noted, there is a tendency to forget that section 36 requires a present, existing reality – that a person is unlawfully withholding a child, or that a person proposes at the time the order is sought to remove a child from Ontario – not a future risk or possibility that a child might not be returned or that a child might be removed. Further, section 36(3) assumes that a motion for a police enforcement clause will be made on notice, at least to the other party. The section says the order may be made without notice if “the court is satisfied that it is necessary that action be taken without delay.” This is a different test from the usual one for motions without notice as articulated in rule 14(12) of the Family Law Rules.”