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The recent case of Patterson v. Powell has given rise to a discussion of how parents can enforce custody and access orders in the event that the other party (or sometimes neither party) is cooperating with the parenting schedule.

The main question being asked in Patterson v. Powell is whether a general clause providing for police enforcement of custody and access can be included in a court order. This is in contrast with a specified term for police enforcement in response to a specific situation. In short, the Court concluded that an open-ended police enforcement clause is not appropriate in a custody and access order.

The Children’s Law Reform Act provides for police enforcement of custody and access in situations where a child is at risk of harm or abduction, such that the immediate safety of the child requires police intervention. The wording of the legislation specifically states that police enforcement is available if “there are reasonable and probable grounds for believing that any person is unlawfully withholding the child”. The wording requires the act of withholding to have taken place, not the mere possibility that a parent will withhold a child. This standard could be met from a single incident or a pattern of withholding the child beyond the permitted time frame, such that each parenting exchange exposes the child to conflict and emotional distress.

Police forces are not expected to act as referees in parenting disputes, and parents should not rely on a police enforcement clause at each parenting exchange to insure the other party does as they are supposed to do.

The fact is that any court order is expected to be obeyed, and failure to do so can result in serious consequences for the non-compliant party. These consequences can include contempt proceedings, which if successful could result in a financial penalty, a fine, and in rare cases a term of imprisonment.

Failure to abide by the terms of a custody or access order could also result in a review of the parenting provisions such that a non-compliant party risks losing custody and access rights if the Court is satisfied that a change in parenting would be in the child’s best interests.

Rather than resorting to police enforcement clauses, lawyers, judges, and parents should be considering other, more child appropriate measures and include these concepts into the terms of the custody and access order if there is a likelihood of conflict.

For example, building in a dispute resolution mechanism that includes a parenting coordinator can be extremely helpful for high conflict families. Alternatively, consider minimizing the number of exchanges that take place, and minimizing the amount of contact between the parents to affect these exchanges. Perhaps exchanges should take place at school, daycare, or at a supervised access centre? We should also consider what tools parents need, outside of the legal handbag, to better understand the impact that parenting disputes could have on their children. Many services exist to provide parents with training and counselling on how to effectively parent post-separation; we should be discussing these options with our clients.

The emotional impact that a child can suffer from being withheld from another parent without just cause is serious, as is the impact a child can suffer from being exposed to police intervention in order to go from one parent to another. In my view, lawyers, judges and parents all have a duty to assess this risk for the child when determining what the custody and access rights will be, and to craft these orders in a manner that is intended to minimize their potential harm.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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