Ontario Court of Appeal Determines Police Jurisdiction in Child Custody Enforcement

Written on behalf of Arbesman Hamilton LLP

The wording of laws is extremely important. One word can sometimes be all that is needed to swing a decision or provide grounds for appeal. In the case of Duff v. James, 2017 ONCA 606, the Ontario Court of Appeal was faced with one such instance of this.

A Conflict of Interest

The original decision dealt with a high conflict custody dispute between a father and a mother over their nine year old child – the only one of their four children who was not an adult at the time. The couple had been sharing custody of the child following their split. At one point, the father requested sole custody, a motion the judge denied. After this, the child was not returned for a scheduled week with the mother. The father was a member of the Waterloo Regional Police Service (WRPS). The WRPS had, in the past, become improperly involved in supporting the father. As a result, the judge ordered the Ontario Provincial Police (OPP) to intervene and enforce the custody order.

Turning to Legislation

Both the OPP and the WRPS initially asked the trial judge to vary the order. Their request was denied. The trial judge turned to s.36(2) of the Children’s Law Reform Act, which states that police enforcement of a custody order should fall to a police force “having jurisdiction in any area where it appears the child may be.” The trial judge determined that the WRPS had an inherent conflict of interest and was not able to assist, largely because the WRPS has inappropriately intervened in the couple’s custody dispute, and as a result had failed to provide police services for the family, particularly the child.

The trial judge also referred to the Police Services Act, which allows for agreements among regional police forces to outsource investigations where there is a conflict of interest. While there is no mention in the Act for such outsourcing in the case of child custody enforcement, the trial judge held that when the best interests of a child are at stake, and there is a legislative gap, the court has jurisdiction to remedy that gap.

On Appeal

Both the WRPS and the OPP appealed the trial judge’s decision (the parents of the child did not participate). The OPP argued the trial judge had no jurisdiction in issuing the order and that it is up to municipalities to determine which police force should be used in such situations. Furthermore, they argued it is up to the Ontario Civilian Police Commission (OCPC) to determine whether a municipal force has failed to provide adequate or effective policing.

The Court of Appeal did not agree with the appellants’ submissions. It ruled the Police Services Act did not contemplate issues such as the one at hand. Like the trial judge, the Court of Appeal turned to the Children’s Law Reform Act, particularly the word “jurisdiction.” The Court’s held the OPP does have jurisdiction in Waterloo, and that two police forces could have overlapping jurisdiction. As a result, there is no legislative gap. The Court of Appeal did note that the OPP would not have been the preferred police force for the matter had the child been located outside of Waterloo.

Child Custody and access arrangements must be made when parents separate or divorce. These arrangements can influence other issues, such as child support, spousal support and the division of property. Reaching such arrangements can also be emotionally difficult. The lawyers at Arbesman Hamilton LLP have experience helping clients through all stages of separation and divorce, including child custody and access arrangements and would be pleased to schedule a consultation with you. We can be reached at 416-481-5604 or online.