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One of the most challenging aspects of divorce or separation for parents is shielding children from any hostile or negative interactions between the parents. While there are options parents can choose to address this risk, such as entering private mediation as opposed to waging public court battles, there is always a chance that interactions down the road may expose a child to behaviour they should not see. In unfortunate situations, police may become involved when the parents are unable to follow orders of the court. In a recent decision from the Ontario Superior Court of Justice, the court looked at one such situation and whether it would be necessary to have police enforce the court’s orders with respect to parenting time.
The facts
The court described the facts of the case as “simple yet outrageous.” A consent order dated October 21 2015 stipulate that the nine-year-old child would reside primarily with the mother, with the father having specified access, including alternate weekends, every Tuesday, and alternate Thursdays.
The child, who is actively involved in hockey, and really enjoys the sport, was scheduled to play in two tournaments. The first was November 15-17, 2019, while the second is scheduled for March 26-20, 2020. Coincidentally, the first tournament fell on the mother’s weekend, while the second fell on the father’s. The mother told the father this would mean they could each take in one of the tournaments.
The father didn’t agree, and took the position that he intended to take the child to the November tournament. He sent the mother an email message stating this. The father’s lawyer then sent the mother’s lawyer an email stating, “Kindly advise your client that our client is taking the weekend of November 15-17 to take (the child) to her hockey tournament.”
The parties eventually reached an agreement that the mother would take the child to the November tournament, while the father would take her to the tournament in March. However, the mother was afraid that the father would “exercise his Thursday access the day before the tournament and that he will not return the child.” In order to prevent this, the mother requested a police enforcement clause.
The police enforcement clause
After learning of the mother’s request, the father told the court there was no need for a police enforcement clause because he didn’t threaten to take any unilateral action, and that he could be trusted to follow the consent order. He also said his email was a “request” to take the child.
The court called the father’s claim that he simply “requested” to take the child to the November tournament “disingenuous.” The court wrote,
“I do not accept the (father’s) suggestion that he was merely ‘requesting.’ He was acting in a heavy-handed manner and this created needless anxiety for the child who should be allowed to enjoy hockey tournaments without worrying about related conflict between parents.”
The court urged the parents to avoid engaging in hard-ball tactics when it came to issues around parenting. The court agreed with the mother that there should be absolute assurance the order would be followed, but did not go so far as to agree that a police enforcement clause was the way to go.
In explaining its reasoning, the court provided the following four points:
a. If our goal is to protect children, why would we select an enforcement mechanism which will inevitably harm the child?
b. Police involvement in dynamic parenting disputes never helps. Nothing could be more upsetting for a child caught between waring parents than to have police officers descend on an already inflamed situation.
c. Children derive no benefit from witnessing their parents getting into trouble with the law. They perceive police as being there to deal with “bad guys.” No child wants to think of their parent as being a “bad guy.” And no parent should place a child in such an emotionally conflicted position.
d. If the objective is to prevent or discourage inappropriate parental behaviour, we must create sanctions which scare offending parents without scaring the child.
The court did create a new order, though. This time, the court held that if the father does anything to interfere with any aspect of the mother taking the child to the hockey tournament, his access would be completely suspended pending further order.
Contact Gelman & Associates to learn how knowledgeable family law lawyers can protect your custody and access rights. We strive to provide you with the information and resources necessary to make informed decisions about family law matters. Conveniently located in six offices throughout Ontario, our offices are easily accessible by transit and off-highway. In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (844) 769-0737 or 1-844-769-0737 or contact us online for an initial consultation.
