L. (N.) v M. (R.R.), 2016 ONSC 809

This case deals with whether a court should continue to order custody or access (with or without police enforcement) where an alienated child is over the age of 16 and refuses to have any contact with the target parent. The court balances and attempts to reconcile the powers and duties of the court under the Divorce Act (and the Children’s Law Reform Act (CLRA)) to make custody and access orders as per the best interests of the children, the children’s growing entitlement to personal autonomy, and respect of their views and preferences.

Background

The parties were married in 1996, and their two sons were born in 1997 and 1999. Both parents were verbally aggressive and physically violent; the home was tempestuous and unstable.

The parties separated in 2012, when the sons were aged 12 and 14. The sons remained in their mother’s primary care for three years after the separation. For the first few months post-separation, the sons occasionally saw the father; after that, they had little to no contact with him.

In 2015, an arbitrator made a final order granting sole custody of the sons to the father. The arbitrator found that the father’s relationship with his sons was seriously damaged by the mother’s campaign of parental alienation. The order also required the sons to attend a “workshop” in order to restore their relationship with their father. The order further prohibited communication between the sons and the mother (or her extended family), and between the sons themselves. It also required police, including the Toronto Police Service, to assist in enforcing this order and its provisions.

After learning of the terms of the order, the sons refused to go with the father, and further refused to participate in reunification treatment. The police were called to enforce this order in respect to the young son only. Although the police made some attempts, they did not persist.

The Chief of Police, on behalf of Toronto Police Service, moved to remove the police enforcement provisions from the order. The mother motioned that the order be changed, and that she have custody of both sons. The sons supported both motions and asked that there be no custody order. The father motioned to enforce the existing custody order.

Analysis

The Police Enforcement Clause

The Chief of Police, who was made party to the motion, argued that the custody order should not include a police enforcement clause for three reasons: first, the order had no expiry date for police enforcement (as is required by section 36 of the CLRA); second, there are serious public safety concerns with returning a youth to custody where the youth may risk their own safety to then escape; and third, there are concerns regarding the long term role of police in continually monitoring custody and forcefully enforcing it.

The court noted that it is important for all orders made under section 36 of the CLRA to contain an expiry date, and for courts to adequately and appropriately assess the time limit when making any such order.

The court further noted that when considering whether to order police enforcement, courts are to review the factors found in Patterson v Powell, 2014 ONSC 1419:

• section 36 of the CLRA is available to address a present and existing problem, not a future or potential problem;
• section 36 of the CLRA does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool”;
• police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved;
• 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;
• 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”;
• 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; and
• chronic non-compliance with a custody or access order is “likely … a problem that police can’t fix anyway”.

Custody and access orders generally require police enforcement only if “any person is unlawfully withholding” a child, or a person “proposes to remove the child or to have the child removed from Ontario”. The court concluded that the alienation of the sons and their consequent voluntary refusal to maintain contact with their father does not amount to such unlawful withholding, and thereby does not warrant police enforcement.

The court also found that there was little if any room for parens patriae jurisdiction to operate as a basis for police enforcement because courts are not to resort unnecessarily to such jurisdiction when a statute, here the CLRA, provides an adequate framework to deal with the issues in the case.

Whether the sons were acting under the influence of the mother’s alienation, or acting independently, they were demonstrably unwilling to cooperate with the custody order. Consequently, the court held that the police enforcement clause was not in the children’s best interests and should be removed as it was ineffective and fruitless for the police to deliver the sons to the father only to have them leave again.

Rights of 16 Year Old Children

The children asserted that they have the right to determine who they should live with and on what terms their relationship with their father shall continue. They relied on section 65 of the CLRA and asserted that they have the right to withdraw from parental control, and have done so.

The court evaluated children’s general rights at common law and under legislation, noting that section 65 of the CLRApreserves the common law right of children aged 16 and over to withdraw from parental control and live on their own or with another person. The court also recognized that statute law has generally preserved the personal autonomy of minors under the age of 18 (for example, 16 year olds have an independent right to apply for and hold a passport (Canadian Passport Order, SI/81-86) or a driver’s license (Highway Traffic Act and O Reg 340/94, section 12)).

The court further noted that the Divorce Act, which deals with custody and access when it is corollary to divorce, has not altered the common law regarding the ability of minors in Ontario to withdraw from parental control. For example, the Divorce Act definition of “child of the marriage” recognizes that minors can and do withdraw from their parents’ charge. The court found that the evidence did not suggest that either of the sons had actually withdrew from parental charge, and therefore, they remained “children of the marriage”.

The court further recognized that it is difficult to assess when to insist on and follow what parents, experts and the court think is in a child’s best interests, and when to otherwise let the child assert their own right to decide.

The court noted that although the wishes of an alienated child are likely to be warped and misconceived, that does not alter the fact that their wishes are nonetheless real. The court found that the sons’ wishes were strong, consistent and long lasting, and that the sons had consistently acted in defiance of the authority of both parents, the arbitrator, the police, and the court’s order.

The court concluded that it was in the children’s best interests that the custody order from 2015 be rescinded in its entirety. The court found that it was not in the sons’ best interests to maintain an order with provisions for physical compulsion; that a renewal of the custody order would likely strengthen the sons’ opposition to renegotiating their relationship with their father. The court therefore ordered that no person has rights respecting the custody of or access to either of the sons; that “each of the sons is his own master in that respect”.