LE359 - Family Court Orders -Enforcement Flashcards
Police have the authority to act on what three orders pertaining to family court orders?
- Child apprehension orders under the Children’s Law Reform Act
-Police also have the authority to assist in executing warrants to bring a child to a place of safety under the Child, Youth and Family Services Act, 2017 - Restraining Orders
- Orders for the exclusive possession of a matrimonial home under section G.
*in general, police do not have the authority to enforce custody or access orders, even if a court order appears to direct police to enforce the custody or access provisions of the order. Where police are asked to act on such an order advice from legal service will be required
Child Custody or access orders
- Citizens who are seeking to have their custody or access order enforced must obtain a child apprehension order from the Family Court in accordance with section 36 of the Children’s Law Reform Act (CFRA). (See section E).
- The Court does not have the authority under the Children’s Law Reform Act to order police to enforce custody or access orders unless the Court makes an order for the apprehension of the child(ren) under section 36(2) of that Act. However, police officers cannot ignore court orders even when they appear to exceed the Court’s jurisdiction.
Child Apprehension Orders and Warrants
-There are two types of child apprehension orders/warrants
- Child Apprehension Order
Are granted under s. 36 of the Children’s Law Reform Act. These orders can be obtained by a person who has been granted custody of, or access to, a child and who believes that another person is unlawfully withholding the child or that the child is being unlawfully removed from Ontario. For more information, see below - Warrants to bring a child to a place of safety
under the Child, Youth and Family Services Act, 2017 are another type of judicial authorization that permits police to apprehend and bring a child to a place of safety. These warrants are obtained by CAS and concern children who are in need of protection. Police may be asked to assist in executing these warrants. For more information, see LE-360 Warrants.
Sections 102(3) and (4) of the Child, Youth and family Services act, 2017
Allows for court to issue a restraining order which will be designated to be a restraining order under section 35 of the Children’s Law reform act.
AKA you get called to a disobeying a restraining order call that matches the above order
Children’s Law Reform Act shall be enforced, when reasonable grounds exist by Disobeying a Court Order pursuant to section 127 of the Criminal Code.
Under the Children’s Law Reform act
36(2) - allows the court to order police to locate, apprehend and deliver a child to the person named in the order.
-apprehension orders may be obtained ex parte, and police are not required to ensure that the person in possession of the child has knowledge of the order
36(4) -of the Children’s Law Reform Act imposes a duty on the police to do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order.
36(5) - of the Act provides police with the power to enter and search any place if there are reasonable grounds to believe that the child may be located there. In addition, police are permitted to enter and search with such assistance and such force as are reasonable in the circumstances.
An entry or search pursuant to section 36(5) can only be made between 06:00 am and 9:00 pm, unless the court order specifies otherwise.
Apprehension orders are to contain an expiry date, which cannot be later than 6 months after the order is made. Members shall not execute an apprehension order after the order’s expiry date.
NOTE: Under section 36(1) of the Act, a court may make an apprehension order that is not directed to the police for enforcement. Section 36(1) orders permit the applicant citizen or someone on their behalf to apprehend the child. If a citizen requests police assistance with a section 36(1) apprehension order, members of York Regional Police may attend to keep the peace only, and may not take any steps to locate, apprehend or deliver the child.
Police Enforcement of Civil Family restraining order
Restraining orders may be issued by the court pursuant to section 46 of the Family Law Act or section 35 of the Children’s Law Reform Act when the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody. A standard form will be issued for all restraining orders so that they are recognizable and clear for police enforcement purposes. The order will be registered against the person being restrained and added to CPIC
The Family Law Act and Children’s Law Reform Act restraining orders do not contain a punishment or other mode of proceeding expressly provided for by law. Section 127 of the Criminal Code is the offence provision to be utilized by police when reasonable grounds are present when a breach of any term of a restraining order has occurred
**(Breach is Disobeying order of court S.127 C.C.) ***
Police Enforcement of Civil Orders for exclusive possession of matrimonial home
Regardless of the ownership of a matrimonial home or its contents, pursuant to section 24 of the Family Law Act, a court may order that one spouse be given exclusive possession of the matrimonial home. Section 24(6) of the Act provides that, if a police officer believes on reasonable and probable grounds that a person has contravened an order for exclusive possession, then the officer may arrest that person without a warrant.
What shall members not do, under this act?
Members shall not attempt to provide legal advice.
Members shall not apprehend a child without one of the following:
(i) a warrant to bring a child to a place of safety, pursuant to the Child, Youth and Family Services Act, 2017;
(ii) grounds to bring a child to a place of safety without a warrant, pursuant sections 81(7) or 83(4) the Child, Youth and Family Services Act, 2017;
(iii) a valid court order, pursuant to section 36(2) of the Children’s Law Reform Act; or
(iv) advice from Legal Services, if confronted with a custody or access order that contains a police enforcement clause.
Things to keep in mind when responding family court orders.
- review the document and determine what type of order it is and what it requires
- if there is any uncertainty about whether the order is enforceable by police, or any uncertainty about the terms of the order or the action to be taken (if any), consult Legal Services
- verify the authenticity of the order by checking that the order is signed by the Justice/Justice of the Peace/Clerk of the Court
- check that the order bears the original (red) seal of the Court, or is a certified copy (photocopies should not be acted upon). Certified copies of orders may be on file with Information Management; and
**PHOTOCOPIES SHOULD NOT BE ACTED UPON - verify that the order is current and, if the order has an expiry date, that it has not expired. Particularly where an order has not been granted recently, members shall confirm the validity of the order with the issuing court office.
If the order is a type of order which is enforceable by police (i.e. Apprehension order, restraining order, order of exclusive possession of matrimonial home)
- make two copies of the order
- scan one copy and attach it to the GO
- check with information management for similar incidents/outstanding orders or warrants
- accompany the applicants to the location
- prevent a breach of the peace
- enforce the order in accordance with lawful duties and power associated with the type of order being enforced, and as appropriate in the circumstances
When enforcing an apprehension order under S.36 of the children’s law reform act (CLRA) and child is locate inside of York Region
- Provide a copy of the court order to the respondent and inform him/her to return the child to the applicant
- if the respondent refuses to obey the court order, advise him/her:
-That he/she may be found to be in contempt of court (section 38(1) CLRA)
-of the police powers and duties to enter, search, locate, apprehend, and deliver the child - if the respondent is not present when a child is taken by the applicant, notify the respondent by leaving a copy of the court order, and make a follow-up telephone call to the respondent as soon as possible; and
- if a child’s location is unknown, refer to Procedures LE-040 Parental and Non-Parental Abductions and LE-006 Criminal Investigation Management Plan.
