



COURT OF APPEAL FOR ONTARIO

CITATION: Duff v. James, 2017 ONCA 606

DATE: 20170720

DOCKET: C62353 & C62362

Sharpe, Lauwers and Miller JJ.A.

C62353

BETWEEN

Shirley Diane Duff

Applicant

(Respondent in appeal)

and

Mark Alexander James

Respondent

(Respondent in appeal)

and

Ontario Provincial Police

Third Party Respondent

(Respondent in appeal)

and

Waterloo Regional Police Service

Third Party Respondent

(Appellant)

C62362

AND BETWEEN

Shirley Diane Duff

Applicant

(Respondent in appeal)

and

Mark Alexander James

Respondent

(Respondent in appeal)

and

Ontario Provincial Police

Third Party Respondent

(Appellant)

and

Waterloo Regional Police Service

Third Party Respondent

(Respondent in appeal)

Virginia Torrance, for the appellant/respondent,
    Waterloo Regional Police Service

Christopher Diana and Lynn Donnelly, for the appellant/respondent,
    Ontario Provincial Police

No one appearing for the respondents, Shirley Diana Duff
    and Mark Alexander James

Sean Dewart and Michelle Thomarat, appearing as
amicus
    curiae

Heard: June 27, 2017

On appeal from the order of Justice D.J. Gordon of the Superior
    Court of Justice, dated June 7, 2016.

B.W. Miller J.A.:

Overview

[1]

These two appeals concern the scope of a judges jurisdiction under s.
    36(2) of the
Childrens Law Reform Act
, R.S.O. 1990, c. C. 12, to
    direct a police force having jurisdiction in any area where it appears to the
    court that the child may be to enforce a child custody and access order. As I
    explain below, I conclude that, in the circumstances of this case, the motion
    judge made no reversible error in ordering the Ontario Provincial Police (OPP)
    to enforce the child access order in place of the Waterloo Regional Police Service
    (WRPS), and I would dismiss the appeals.

Background

[2]

The order that is the subject of these appeals arose out of a high
    conflict custody dispute between a father and mother concerning the youngest
    child of the marriage. The appellants take no issue with the motion judges
    determination that police assistance was required to enforce the terms of the
    custody and access order. However, 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 therefore was not able to assist. The nature
    of the conflict of interest was that the father was a member of the WRPS, and
    the mother had brought allegations that the WRPS had on several occasions inappropriately
    intervened in the custody dispute to further the fathers interests.

[3]

In 2015, the mother brought a contempt motion following the fathers
    failure to deliver the child to her custody. The motion judge found that
    officers of the WRPS had interfered with the exchange of the child from the
    father to the mother, and had effectively prevented the mother from exercising
    custody. The motion judges order, which was dated November 6, 2015, granted various
    remedies including the following police assistance provision:

This Court orders, pursuant to Section 36 of the
Childrens
    Law Reform Act
, that the Ontario Provincial Police, having jurisdiction
    where the said child may be found, is hereby directed to locate, apprehend and
    deliver the child to the parent entitled to custody or access in accordance
    with this Order, which direction shall remain in effect until further order of
    this Court.

[4]

Thereafter, the parties respected the custody and access schedule and neither
    had need to resort to the OPP for assistance.

[5]

On April 28, 2016, the OPP brought a motion to vary the police
    assistance provision in the order, so that the OPP would no longer be the
    police service designated. It was supported in this by the WRPS.

[6]

The motion judge refused to vary the order. His reasons set out the
    basis for the police assistance provision of the November 6, 2015 order: that
    although the WRPS is the presumptive police force to enforce a s. 36 order by
    virtue of sections 4 and 5 of the
Police Services Act
, R.S.O. 1990, c.
    P. 15, the WRPS, because of its inherent conflict of interest, had failed to
    provide police services for the family, particularly the child.

[7]

The motion judge noted that the
Police Services Act
allows for
    agreements among regional police forces, as well as the OPP, to outsource
    investigations where there is a conflict of interest. He noted, however, that
    there is no express provision providing for outside assistance where needed to
    enforce custody or access. The motion judge held that where the best interests
    of a child are at stake, and where there is a legislative gap, the court has
parens
    patriae
jurisdiction to craft a remedy. Accordingly, the motion judge had
    ordered the OPP to provide the needed assistance.

[8]

The OPP and WRPS each appeal from the order dated June 7, 2016 dismissing
    the motion to vary. The original parties did not participate in this appeal,
    and the OPP agreed to fund
amicus
so that the Court could have the
    benefit of argument on both sides of the appeals.

Analysis

[9]

The OPP argues that the motion judge had no authority to impose on the
    OPP an obligation to enforce the police assistance provision. The choice of
    whether to use a municipal police service or the OPP, the appellants argue, is
    to be determined by each municipality as a matter of democratic governance. Further,
    it is the Ontario Civilian Police Commission (OCPC), and not the Superior
    Court, the appellants argue, that is assigned supervisory jurisdiction and can
    determine that a municipal police force has failed to provide adequate or
    effective policing and, in such circumstances, can request the OPP to assist,
    per s. 9(2) of the
Police Services Act.
The appellants argue that the
    motion judge had no authority to make the order, and in doing so usurped the
    jurisdiction of the OCPC.

[10]

I do not agree with these submissions. The powers conferred on the OCPC
    by the
Police Services Act
do not contemplate the OCPC dealing with or
    remedying the kind of case-specific problem posed by this case. Given the
    nature of the OCPCs statutory powers, it is unrealistic to think that the OCPC
    could have effectively managed the need for police assistance in this case.

[11]

In my view, the motion judges order was authorized by the plain
    language of s. 36(2) of the
Childrens Law Reform Act
:

Where a court is satisfied upon application that
    there are reasonable and probable grounds for believing,

(a) that any person is unlawfully withholding a child
    from a person entitled to custody of or access to the child;



the court by order may direct a police force, having
    jurisdiction in any area where it appears to the court that the child may be,
    to locate, apprehend and deliver the child to the person named in the
    order.

[12]

The policing arrangements in place for the Waterloo Region make the WRPS
    primarily responsible for dealing with s. 36(2) orders. However, the OPP is also
    a police force having jurisdiction to maintain the peace and enforce the laws
    in Waterloo Region:
Foster v. ADT Security Services Canada Inc.
2007
    ONCA 653 at para 3. Section 36(2) is not premised on there being a single
    police force with exclusive jurisdiction in any territory. The
Police
    Services Act
provides for overlapping and concurrent responsibilities
    within the same territory.

[13]

In ordinary circumstances, a judge making an order under s. 36(2) will not
    need to designate a police force. The order should be made in the terms of the
    statute so that the municipal police force in whatever region the child in
    question happens to be at the time is authorized to act. Indeed, to ensure that
    s. 36 orders can be enforced if the child is moved from place to place, it is
    preferable not to specify a specific police force. However, in an exceptional
    circumstance such as this, where the municipal police force where the child is
    residing is not able to act, s. 36(2) permits a judge to specify that the OPP
    assist.

[14]

The motion judge also relied on
parens patriae
jurisdiction as
    a possible basis for the order he made. In my view, the power conferred by s.
    36(2) is broad enough to permit a judge to order assistance from any police
    force, including the OPP, that has jurisdiction in a given area. Accordingly,
    as I see no legislative gap, it is not necessary to address the issue of
parens
    patriae
.

[15]

That is sufficient to dispose of the appeals. However, the appellants
    raise one further issue that should be addressed. By specifying that the OPP is
    the police force having jurisdiction where the said child may be found, the
    November 16, 2015 order extends the involvement of the OPP further than
    necessary. Should the child happen to be in another region, outside the
    territory of the WRPS, there is no reason why the OPP should be preferred over
    the municipal force in that region. Although the order has now expired and the
    appeal is moot, I note that it would have been preferable for the order to have
    provided that the OPP would only be required to provide assistance if the child
    was to be found within the region policed by the WRPS.

[16]

Additionally, it should be noted that s. 36(2) orders should specify an
    expiry date in compliance with s. 36(7).

Disposition

[17]

I would dismiss the appeal and make no order as to costs.

Released: RJS JUL 20 2017

B.W. Miller J.A.

I agree. Robert J.
    Sharpe J.A.

I agree. P. Lauwers
    J.A.


