A.S.J.N. PETITIONER - v. –, 2023 SKKB 167

REDACTED VERSION KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 167 Date: 2023 08 09 Docket: FLD-RG-00198-2023 Judicial Centre: Regina , Family Law Division BETWEEN: A.S.J.N. PETITIONER - and – C.A.C.1 RESPONDENT CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released August 31, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel Bruce K. Campbell for the petitioner No one appearing for the respondent FIAT ROBERTSON J.

August 9, 202 3 INTRODUCTION [ 1 ] This decision addresses a without notice application with respect to the child of the parties asking for: primary residence of the child; prohibition against removal of the child from the province; delivery of the child by the father to the mother; restraining the father from interfering with the mother’s custody of the child; police enforcement of the order with instructions for police to locate, apprehend and deliver the child to the mother; and abridging service of a related with notice application.

For the reasons which follow, the application is dismissed. [ 2 ] The application gives the court an opportunity to remind lawyers about the proper use of without notice applications and the limited availability of police enforcement clauses. [ 3 ] Without notice applications are an exception to the usual rule requiring notice of applications. They are reserved for applications where proceeding with notice would be contrary to the interests of justice or would result in serious mischief.

Notice is both fairer, by providing the other party with an opportunity to respond, and better, in that any decision is better informed by hearing from both sides. [ 4 ] Police enforcement of a court order is an exceptional remedy. It is appropriately a remedy of last, not first, resort. BACKGROUND Filed materials

[ 5 ] In commenting on flaws in this application I recognize it was prepared quickly and submitted as an urgent application. There is an inevitable trade-off between speed and quality. [ 6 ] On July 27, 2023, the petitioner, A.S.J.N., [Mother] filed a petition, without notice application with her affidavit and draft order, and a separate with notice application. The documents are deficient in some important respects. [ 7 ] For example, although the petition claims that the parties are unmarried spouses, it does not state when cohabitation commenced.

The documents do not say where the family lived when together, nor who went where when they separated. [ 8 ] The application is supported by a single affidavit of the Mother sworn July 27, 2023 at Ile-a-la-Crosse, Saskatchewan [Affidavit]. It is only 11 paragraphs over 3 pages, but does not appear to have been proof-read by counsel. Some of the statements in the Affidavit are not understandable.

For example, para. 4 includes the statement “Turn the course of our relationship the respondent it’s not allowed by older children to have a relationship with their fathers.” Assumed facts from materials [ 9 ] Regardless, from the documents filed, I take the following as alleged.

The assumed facts are gathered from putting together bits and pieces from the petition and Affidavit to construct a coherent narrative. [ 10 ] The parties began dating in 2018 and began living together on August 28, 2018 (Affidavit at para. 3). [ 11 ] While not stated in the filed materials, I will assume that the family had lived together at Ile-a-la-Crosse before the separation, since the petition states Ile-a-la-Crosse as the respondent’s, C.A.C.1, [Father] current residence and the Mother returned there for a court appearance on July 26, 2023 (petition at para. 2, and Affidavit at para. 8). [ 12 ] The Mother and Father are parents of C.A.C.2, born [REDACTED] [Child] (petition at para. 26). [ 13 ] On June 3, 2023, the parties had a domestic dispute.

As a result, the Mother was charged with assaulting the Father (Affidavit at para. 7). [ 14 ] The parents ceased to cohabit sometime in June 2023 (petition at para. 12). [ 15 ] The Mother left the family home with the Child (petition at para. 27). [ 16 ] While not stated in the Affidavit, I will assume that the Mother moved to [REDACTED] First Nation [REDACTED] with the Child, since she shows [REDACTED] as her home in the petition and says in her Affidavit that “It is 10-hour drive between my home and Ille Crosse [ sic ] …” (Affidavit at para. 8). (Google maps show driving distance of under eight hours between Ile-a-la-Crosse and [REDACTED].

That estimate would not include time for stops, so would seem to support the assumption.) [ 17 ] The Father now resides at [REDACTED], Ile-a-la-Crosse (petition at para. 24). I assume that to be the address of the family home. [ 18 ] The Mother now resides at [REDACTED] (petition at para. 23). [ 19 ] On July 25, 2023, the Mother, with the assistance of the Royal Canadian Mounted Police [RCMP], had the Child delivered to the Father’s home in Ile-a-la-Crosse.

The Mother intended to pick up the Child the following day, after her court appearance (Affidavit at para. 8). [ 20 ] On July 26, 2023, the Mother appeared in Provincial Court in Ile-a-la-Crosse. The charge was adjourned to August 23, 2023 to allow her to get legal advice (Affidavit at para. 7). [ 21 ] The RCMP told the Mother that the Father would not be returning the Child at that time.

The Mother’s lawyers contacted the Father who gave them the name of his lawyer, who is also with Saskatchewan Legal Aid (Affidavit at paras. 8 and 9). [ 22 ] On July 27, 2023, the Father’s lawyer was served with the petition, without notice application and with notice application. ISSUE [ 23 ] The main issue is whether the court should grant the requested order? To decide that issue, the court must answer other questions. My short answers to those questions appear below the questions. 1. Does the court have jurisdiction to grant the requested relief? - Yes 2.

Is the application sufficient in form and content? - No, as to content 3. Should such relief be granted on a without notice basis? - No 4. Should a police enforcement clause be included on an anticipatory basis?

- No 5. Should the time for service of the with notice application be abridged? - No ANALYSIS [ 24 ] I will address the questions in the order they appear and provide reasons for my conclusions. Jurisdiction to grant relief [ 25 ] The Mother relies upon The Children’s Law Act, 2020 , SS 2020, c 2 , ss 6, 8 and 9, which are reproduced below. These provisions are relevant to the jurisdiction of the court to make a parenting order: Jurisdiction 6(1) For the purposes of making a parenting order or for the purposes of

Part 5, the court has jurisdiction if: (

a) the child is habitually resident in Saskatchewan at the commencement of the application for the order; or (

b) the child’s habitual residence cannot be determined and the child is physically present in Saskatchewan.

(2) The removal or retention of a child without the consent of the child’s legal decision-maker does not alter the habitual residence of the child unless: (

a) each person with decision-making responsibility for the child agrees to the removal or retention of the child; or (

b) the child has resided in the other jurisdiction for a period of at least one year after the child’s legal decision-maker knew or ought to have known of the whereabouts of the child, no process has been commenced to return the child, and the child is settled in the new jurisdiction. . . . Parenting order 8(1) Notwithstanding sections 3 to 5, on the application of a parent or other person having, in the court’s opinion, a sufficient interest, the court may, by order: (

a) appoint one or more persons as a child’s legal decision-maker, and, if applicable, determine the sharing and division of decision- making responsibility; (

b) grant parenting time with respect to a child to one or more persons; (

c) determine any aspect that is incidental to exercising decision-making responsibility or parenting time; (

d) authorize or prohibit the relocation of a child in accordance with sections 13 to 17; and (

e) make any additional order that the court considers necessary and proper in the circumstances.

(2) If the court appoints a parent as legal decision-maker pursuant to subsection (1), the court may, if the court is of the opinion that it is in the best interests of the child to do so, by order, authorize the parent to appoint another person: (

a) to be the child’s legal decision-maker on the parent’s death; (

b) to be the guardian of the property of the child on the parent’s death; or (

c) to have both of the duties mentioned in clauses (

a) and (b).

(3) On application and before making an order pursuant to subsection (1), the court may make or vary an interim order on any terms and conditions it considers appropriate.

(4) On application, the court may vary or discharge any order made pursuant to this

section if there has been a material change in circumstances since the date of the order.

(5) If an order is made for supervised parenting time pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay.

(6) Unless the court orders otherwise, a parent who is granted parenting time with respect to a child has the same right as the parent who is the child’s legal decision-maker to make inquiries and be given information respecting the health, education and welfare of the child.

(7) Unless the court orders otherwise, a parent who is granted parenting time with respect to a child is not entitled to be consulted about or to participate in the making of decisions by the child’s legal decision-maker. Notice of application

9(1) A person who makes an application pursuant to this Act shall serve a copy of the application on: (

a) each parent of the child who is not an applicant; and (

b) any other person who, pursuant to a parenting order, has decision-making responsibility or parenting time with respect to the child.

(2) The court may order that notice of the application be served on any person who has, in the court’s opinion, a sufficient interest in the child, and that person may be heard at the hearing of the application.

(3) Notwithstanding subsection (1), the court may allow an application for an interim order to be made without notice. [ 26 ] The Mother also relies upon The King’s Bench Act , SS 2023, c 28 , but cites the

section numbers from the repealed predecessor legislation, The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 (rep), ss 44.1(

a) and 44.1(10). There was no s. 44.1(

a) in The Queen’s Bench Act, 1998 , but the Mother may have intended s. 44.01(1)(

a) which lists providers of family dispute resolution. If so, the equivalent sections in The King’s Bench Act are ss. 7 - 4(1) (

a) and 8 - 1(10) , which are reproduced below. (

Section 8 - 1(10) is relevant to the ability of the court to postpone the completion of parenting education normally required before an application is made): Family dispute resolution 7-4(1) In this section: “family dispute resolution” means a process used by parties to an application to which this

section applies to attempt to resolve one or more of the disputed issues, and includes: (

a) the services of any of the following persons: (

i) a family mediator; (ii) a family arbitrator as defined in

section 2 of The Arbitration Act, 1992 ; (iii) a parenting coordinator as defined in

section 30 of The Children’s Law Act, 2020 . . . Parenting education required 8-1 . . .

(10) On an application without notice, the court may postpone the requirement to attend a parenting education program pursuant to this

section if one of the parties has made a unilateral change in a custody or access arrangement. [ 27 ] The Mother also relies upon Rules 12-10, 15-33(1) and 15-41(6) of “ The King’s Bench Rules ”. (This is a misnomer, as The Queen’s Bench Rules have not yet been renamed). Those Rules pertain to substituted service (Rule 12-10), application without notice (Rule 15-33) and application for substantive interim relief (Rule 15-41). Rules 15-33 and 15-41(6) are relevant to bringing the application on a without notice basis. [ 28 ] No authority is cited for the police enforcement clause.

That subject will be discussed separately below. Sufficiency of Application [ 29 ] The application is sufficient in form, based upon Form 15-34: Application Without Notice (Family Law Proceedings) . But it is deficient in content. [ 30 ] The applicant has the onus of satisfying the court that the requested relief should be granted.

As discussed above under “Assumed facts”, the Affidavit filed in support of the materials did not provide a coherent narrative. [ 31 ] Even when pieced together with “facts” from the petition, the application does not provide a compelling basis for the requested relief. [ 32 ] On the filed materials, the parents separated in June 2023. The separation followed a domestic dispute in the family home at Ile-a-la-Crosse on June 3, 2023. The Mother was charged with assaulting the Father and is now subject to a non-contact order.

The Mother left the family home with the Child and moved to [REDACTED]. [REDACTED] is 767 kilometres by highway. On July 25, 2023, the Mother returned to Ile-a-la-Crosse for a court appearance. She gave the Child to the Father. The Father has declined to return the Child. The Mother has filed a with notice application seeking primary residence of the Child and supervised parenting time for the Father. That application is scheduled for Regina family chambers for September 1, 2023. [ 33 ] The Children’s Law Act, 2020 contains provisions which are relevant to any parenting order.

Section 3 provides that unless otherwise ordered by the court or by agreement, “the parents of a child are joint legal decision-makers for the child, with equal powers and responsibilities.”

Section 11 of The Children’s Law Act, 2020 tells the court not to make any presumption nor draw any inference that one parent should be preferred over the other parent. So the starting point between the parents is equality. In other words, the Mother has no better right to the Child than the Father. [ 34 ] Section 10(1) requires the court to consider only the best interests of the child when making parenting decisions.

Section 13 requires notice of relocation by a parent who has decision-making authority. [ 35 ] The relevant factors do not obviously favour the Mother’s application. Generally, stability and security will favour continued residence in the family home over a move far from the home community. Generally, the instigator of inter-personal violence will have some explaining to do. And here, the Mother had the Child for several weeks before returning the Child to the Father for a visit.

The Father had the Child for two days before the without notice application was filed. [ 36 ] While I have other reasons for dismissing the without notice application, I am not satisfied that the application should be granted on the materials filed. It is better left for a with notice application which will allow the parties to reach agreement beforehand or, failing agreement, to be decided with evidence and submissions from both parties. Requirements for without notice applications [ 37 ] Without notice applications, also known as ex parte applications, serve good purpose in speeding up the court process.

They are appropriate in a number of situations, including: where the circumstances require an immediate and interim court order, often to preserve the status quo , pending a with notice hearing of the application soon after; in uncontroversial matters where no one’s interests are affected; and in cases where there is no opposing party. [ 38 ] But without notice applications also pose real risks, since the court is dependent upon the applicant and does not hear from both sides before deciding.

That creates a real risk of a bad decision resulting from misinformation or incomplete information. [ 39 ] The general rule is that all applications must be brought with notice: family Rule 15-32. An exception is made for without notice applications where the court is satisfied that proceeding with notice “would be contrary to the interests of justice or would result in serious mischief”: family Rule 15-33(1). The application does not explain how proceeding with notice would be contrary to the interests of justice or result in serious mischief. The court should not be left to guess. [ 40 ]

Section 9 of The Children’s Law Act, 2020 , on which the Mother relies for a parenting order, expressly provides in s. 9(1) that such applications should be made with notice and in s. 9(2) that without notice applications are exceptional.

So the court must take special care when asked to grant such relief on a without notice basis. [ 41 ] In Kapell v Gaber , 2021 SKQB 329 at paras 17-25 [ Kapell ] , Megaw J. commented on the duty of counsel bringing a without notice application to ensure the court is fully informed: [17] It is the obligation of counsel to ensure that which is placed before the court without notice to the opposing side, is properly before the court and “the special provision” (Rule 6-4(a)) is clearly identified in the materials. Ex parte relief is not a short-cut that allows one party to gain an upper hand on another.

Neither is it a cure-all remedy when timelines are pending, and one party is in need of specific relief. The court will not guess at the special provision, and neither will it complete the work that must be done by counsel in this regard. . . . [19] Counsel must always ensure they are acting as officers of the court, but this is a heightened responsibility when the party opposite is not also before the court and the court is completely acting on the representations of the material before it and an assumption the issue of jurisdiction has been considered and resolved.

On ex parte applications, the court is very much at the mercy of one side in a disputed matter. That one side presents only their version of the facts and their version of the law, including jurisdiction. The court must be able to rely that those versions are complete, considered, and accurate. There are no exceptions to this and there may be no excuses for a failure in this regard. . . . [24] The unusual nature of ex parte applications and the need to be careful, complete, and scrupulous in the presentation of materials has been stated a number of times by this Court.

It is incumbent on counsel and parties to be extra vigilant to ensure both accurate and truthful information is being placed before the Justice reviewing the file. In this regard, I refer to the comments made in Bank of Nova Scotia v Herman , 2016 SKQB 351 : 10 Ex parte applications carry with them a heavy onus on the party making application to do four things: 1. Provide notice of the proceedings to the opposing counsel unless circumstances are such as to compel immediate action by the court; 2. Provide full, frank, and complete disclosure of all available information to the court; 3.

Provide a complete basis in law for the court's jurisdiction to grant the relief requested including providing the applicable rules and case authority; and 4. Provide all of the necessary material, including the draft order, to allow the court to review everything before proceeding. [25] As already pointed out, ex parte applications leave the court at the mercy of those seeking to use this extreme remedy. It is absolutely essential that counsel and affiants ensure, to the fullest extent possible, that which they place before the court presents the entire picture for the court’s consideration.

It is not, I repeat, an opportunity to get an advantage on the opposite side. [ 42 ] See also: • 6517633 Canada v Clews Storage Management Keho Ltd. , 2020 SKQB 172 at para 18 (Robertson J.) [ Clews 2020 ] • 6517633 Canada Ltd. v Clews Storage Management Keho Ltd . , 2019 SKQB 320 at para 26 (Robertson J.) [ Clews 2019 ]

• C.P.B. v L.M.B., 2019 SKQB 306 at para 46 (Robertson J.) • Bank of Nova Scotia v Herman, 2016 SKQB 351 at paras 10-15 (Megaw J.) [Herman] • Conexus Credit Union 2006 v B Bergen Holdings Ltd., 2011 SKCA 132 at para 28, 377 Sask R 115 • Agracity Ltd. v Skinner, 2009 SKQB 362 at para 109, [2010] 7 WWR 719 (Dufour J.); appeal dismissed 2013 SKCA 7 • Skoretz v Skoretz (1963), (SK KB), 38 DLR (2d) 510 at 513 (MacPherson J.) Where a person seeks an order ex parte he must proceed with the utmost good faith and withhold no material facts. [43] As discussed above, the materials filed leave the court wondering about potentially relevant and material facts.

Police enforcement clause for child apprehension [44] The application seeks what is commonly referred to as a police enforcement clause, included as para. (

d) of thedraft order: (

d) For the purposes of enforcement of the said Order, the Royal Canadian Mounted Police and/or Regina City Police and/or any localdetachment are hereby instructed to locate, apprehend and deliver to the Petitioner, physical possession of the child, C.A.C.2, born [...],2019, and further, that the said Peace Officer in carrying out this Order shall take whatever steps are necessary to carry out the Orderherein. [45] There are several problems with the proposed order. [46] As noted above, the application does not cite any authority for the proposed police enforcement clause.

Asstated in Kapell at para 17, the court should not be expected to search for authority. It is the applicant’s responsibility to identify clearlegal authority and then establish a factual basis for the exercise of that authority. [47] There is authority in s. 39 of The Children’s Law Act, 2020 for a police enforcement clause, but this applicationdoes not satisfy the requirements for such an order.

Section 39 is reproduced below: Order if child unlawfully withheld 39(1) The court, by order, may direct a sheriff, peace officer or other person that it considers appropriate to locate, apprehend and delivera child to a person specified by the court for the purpose of giving effect to the rights of the applicant pursuant to an order or agreementif the court, on application, is satisfied that there are reasonable grounds for believing that a person: (

a) is unlawfully withholding the child from a person who has decision-making responsibility or parenting time with respect to the childpursuant to an order or agreement; (

b) who is prohibited by an order or agreement from removing the child from Saskatchewan intends to remove the child fromSaskatchewan; or (

c) who is entitled to parenting time with respect to the child pursuant to an order or agreement intends to remove the child fromSaskatchewan and is not likely to return the child to Saskatchewan.

(2) For the purpose of enforcing an order made pursuant to subsection (1), the sheriff, peace officer or other person named in the ordermay enter and search any place where the sheriff, peace officer or other person named in the order has reasonable grounds for believingthat the child may be located.

(3) An application pursuant to subsection (1) may be made without notice if the court is satisfied that it is necessary that action be takenwithout delay.

(4) The sheriff, peace officer or other person directed to act by an order made pursuant to subsection (1) shall do all things reasonablyrequired to locate, apprehend and deliver the child in accordance with the order.

(5) Neither the minister responsible for the administration of The Child and Family Services Act nor any employee of that minister’sministry who is acting in the course of the person’s responsibilities pursuant to that Act is to be named in an order made pursuant to thissection without the person’s prior written consent. [48] The authority to make an order for police enforcement under s. 39 is restricted to three specific circumstances. Itrequires proof of two elements for each: 1. Existence of a court order or agreement on parenting; and 2. Reasonable grounds to believe a person is: (

a) unlawfully withholding the child, (

b) prohibited from removing the child from Saskatchewan and is intending to remove the child from Saskatchewan, or (

c) entitled to parenting time with the child and intends to remove the child from Saskatchewan and is not likely to return thechild to Saskatchewan,

contrary to the court order or agreement. [49] On the materials filed, there is no court order for parenting. And there is no evidence nor suggestion that theFather intends to remove the Child from Saskatchewan. So the only possible basis for invoking s. 39(1) is clause (

a) where a person isunlawfully withholding a child contrary to a parenting agreement. [50] The Mother makes no claim of any parenting order or agreement in her Affidavit. The petition in para. 43indicates there is no parenting agreement: 43.

The particular of all other orders or agreements relating to any child in the care of the respondent or me are: None [51] There is a reference in para. 27 of the petition of an “agreement to return him [and] is refusing to do so.” Whenread in conjunction with para. 8 of the Affidavit, I take it that when the Child was delivered to the Father on July 25, 2023, the Mother’sexpectation was that the Father would return the Child to her the next day.

Since she was under a no-contact order, this exchange wasarranged through the RCMP. [52] The materials filed fall short of establishing any parenting agreement necessary to satisfy that element of s. 39.That being the case, the facts do not support exercise of the court’s authority under s. 39. [53] Assuming there is other authority for a police enforcement clause, the application has other problems. [54] The application does not name any person or position.

By framing the order to name “the Royal CanadianMounted Police and/or Regina City Police and/or any local police detachment”, the application names everyone and no one. If issued,who is responsible for carrying out the order? [55] In J.J.B. v S.J.B., 2019 SKQB 172 at para 53-54, 27 RFL (8th) 129 [J.J.B.], I discussed the naming of anidentifiable person or position in an order under then s. 24(1) of The Children’s Law Act, 1997, SS 1997, c C-8.2 (rep): [52] Section 24(1) does not authorize an order for enforcement just in case there may be need in the future. Subsection 24(1)(

a) expresslyrequires “reasonable grounds for believing that a person is unlawfully withholding” a child from the person entitled to access or custody. [53] When there are grounds to authorize an order for enforcement under s. 24(1), there may still be a question as to who should benamed as the primary enforcement agency. [54] Although s. 24(1) allows the court to name any “peace officer or other person”, it seems significant that the first and only publicofficial named is “a sheriff”.

While both have peace officer status, police officers are different from the sheriff, who is a court officialand expressly subject to direction from the court pursuant to s. 6 of The Court Officials Act, 2012, SS 2012, c C-43.101. Yet manyapplications name “police”. [Emphasis in original] [56] If an identifiable person was named, that would raise the question of whether that person was represented by alawyer. If so, then that lawyer would be entitled to notice of the without notice application.

See: • Kapell at para 24 (Megaw J.) • Clews 2020 at para 19 (Robertson J.) • Clews 2019 at para 26 (Robertson J.) • Farrell Holdings Inc. v Nussbaumer Holdings Ltd., 2017 SKQB 125 at paras 27-28 (Megaw J.) • Herman at paras 10-15 (Megaw J.) • Roberts v Roberts, 2014 SKQB 80 at paras 6-12 (Turcotte J.) • Stellek v Sinclair, 2007 SKQB 301 at paras 10-11, 300 Sask R 207 (McIntyre J.) • 615231 Saskatchewan Ltd. v Schulz, 2002 SKQB 123 at para 10, [2002] 8 WWR 345 (Baynton J.) • “Ex-Parte Applications”

(2000) Vol 13, Issue #5, p. 13, Bencher’s Digest • Murray v Boyle (1989), (SK KB), 77 Sask R 287 at para 11 (McIntyre J.) [57] This notice provides opposing counsel with the opportunity to inform the court of any objection to the reliefsought in the without notice application. They may do so by contacting the local registrar in accordance with General ApplicationPractice Directive #8: “Communication and Correspondence with Judges”. See: Stuart v Canada (Attorney General), 2023 SKKB 108 atpara 10 (Popescul C.J.K.B.). [58] The Mother did properly notify the Father’s counsel of the without notice application.

No notice of objection hasbeen received. There is, however, nothing stated about notice to the police, although the Mother’s Affidavit names a specific RCMPofficer who was involved in the exchange of the Child. [59] The RCMP and the major municipal police services have employed lawyers, so if an order is directed to thecommanding officer of RCMP F Division (Saskatchewan) or to the chief of police of one of the major municipal police services, their

lawyer should be notified of the application. [ 60 ] The naming of an identifiable person or position and notice to their lawyer will avoid later problems with enforcement of the order. See , for example , Bond v Jackson , 2021 SKQB 301 .

Of course, if the sheriff of the judicial centre where the order is issued is directed with the task of enforcement, that will avoid the issue, since the sheriff is accustomed to enforcement of civil orders, can liaise and coordinate with other sheriffs, municipal police services and RCMP police detachments located across the province, and as a court official can seek further direction from the court. [ 61 ] Apart from the above problems, one can ask where is the demonstrated need for police enforcement?

There has been no defiance of a court order. [ 62 ] The filed materials do not raise concern with the safety of the Child. The petition in para. 29 proposed “reasonable parenting on reasonable notice” for the Father. The Mother in her Affidavit at para. 11 states “I am not opposed to the Respondent having parenting time, I would like to [be] able to either arrange this through lawyers or possibly mediation.” [ 63 ] And, according to the filed materials, the RCMP were involved in taking the Child to the Father with the Mother’s agreement, so they must have some awareness of the home situation.

If there were reasonable and probable grounds to believe the Child was in need of protection and at risk of incurring serious harm, a child protection officer or peace officer, including a police officer, could take immediate action to apprehend the child under s. 17 of The Child and Family Services Act, SS 1989-90, c C-7.2 . They would not need to wait for a court order. But if required, a warrant could be obtained under s. 13.1 of that Act.

The advantages of action under those provisions are that the public officers involved are objective, have first-hand knowledge and access to child protection services who have experience and training to deal with children at risk. [ 64 ] When police are asked to apprehend a child for the purpose of settling an access dispute, obvious problems may arise. Police are trained and equipped to handle prisoners, including transporting them in secure patrol cars and holding them in cells.

Those options are not appropriate for vulnerable children. [ 65 ] This Court has, over many years, cautioned against including police enforcement clauses in parenting orders, pointing out that the use of police to enforce exchanges may not be in the child’s best interests. [ 66 ] In Kerfoot v Pritchard , 2005 SKQB 63 [ Kerfoot ] , Smith J. wrote: Order under s. 24 of The Children’s Law Act, 1997 [13] The respondent complains that notwithstanding the existence of an order providing him with the right to access, police authorities will not seize Brianna from her mother in order to effect such access.

As a result, the respondent seeks standing direction under s. 24 to the police authorities in order to accomplish such seizure. [14] Respectfully, I do not think the imposition of the police laying hands on Brianna in order to accomplish weekend access is likely to enhance his relationship with his daughter. If it can be shown that the petitioner is committing acts of commission or omission in order to thwart the respondent’s access, then the appropriate application for contempt should be brought.

I am not prepared to make an order under s. 24 at this time. [ 67 ] In McGinn v McGinn , 2006 SKQB 166 , Kraus J. wrote: [13] There is a difference between the respondent not doing all he can to encourage the children to live with the petitioner on a weekly rotation, and actively discouraging or influencing them against it. ( Ohlmann v. Ohlmann , 2005 ABQB 98 ; (2005), 14 R.F.L. (6 th ) 64 (Alta. Q.B.)). The respondent has not been shown to have done so. Moreover, it is not appropriate to order the police to deploy their forces to enforce the petitioner’s right to access on alternating weeks. ( Kerfoot v.

Pritchard , 2005 SKQB 63 ; [2005] S.J. No. 66 (QL) (Q.B.) ). [ 68 ] In Lee v Cathcart , 2010 SKQB 87 [ Lee ] , Wilson J. wrote: [10] I am always reluctant to make an order that the police assist with parenting arrangements. It is not in the best interests of a child, particularly a child as young as Destyn, to be forcibly removed from one parent's home and delivered to the other parent. Children are traumatized by these events. However, when a mother, for reasons unknown, decides a father will not be having his court ordered access, a police assist clause may be required.

I am of the view that a police assist clause, is unfortunately, required in this matter. I am making an order that police officers assist the father to ensure that the parenting times as set out above take place. This will include the authority to locate the mother and the child and remove the child from the mother's home, if required, and place the child in the father's care for the access periods set out above. [11] If the mother is thinking of the child's best interests, she will follow this order and not deny the father his access.

The mother should voluntarily comply with the Sandomirsky J. order, and my order in this matter. This will avoid the trauma to Destyn that I envision if the police need to be involved. [ 69 ] In J.J.B . at para 55 , I cited Lee and Kerfoot in declining to make the requested order, noting alternatives to police enforcement when there is breach of a parenting order. There are other tools in the judicial toolkit. These include: (

a) Justices seizing themselves to ensure ready access to court and continuity in oversight of court orders, (

b) revisiting the parenting order, since willingness of a parent to support the child’s relationship with the other parent is a relevant factor under s. 10(3) (

c) of The Children’s Law Act, 2020 , (

c) the supervised exchange program,

(

d) directing the parents to attend high conflict parenting education, family dispute resolution (mediation) or case management,and (

e) through contempt proceedings. [70] Simply put, police enforcement will normally be a last resort, not the first recourse, especially when the breachis only anticipated. [71] Concern with misuse of police enforcement clauses is not confined to Saskatchewan. This Court’s concern isshared with other courts across Canada. See, for example: (

a) Milne v Milne, 2023 ONSC 27 at para 56, 86 RFL (8th) 420 - reproducing s. 36 of the Ontario Children’s Law Reform Act, RSO 1990, c C.12 which is very similar to s. 39 of TheChildren’s Law Act, 2020 (

b) D.G.T. v V.J.I., 2023 BCSC 1061 at para 123 (

c) V.S.B. v B.L.O., 2022 ONCJ 506 at paras 142-144: [142] Police enforcement ought to be granted rarely and only in extraordinary circumstances. It should only be granted in very seriouscases where there is solid evidence that such interference by the police is necessary. See: Bouchard v. Sgovio, 2021 ONCA 709. [143] It is an order of last resort to be made sparingly and in exceptional circumstances. It can frighten children and polarize a difficultsituation. See Allen v. Grenier [1997] O.J. No. 1198 (General Div.).; Klinkhammer v. Dolan and Tulk 2009 ONCJ 630; F.(M.) v.

M. (C.) (2009), 2009 NSFC 15 , 72 R.F.L. (6th) 226 (N.S. Fam. Ct.). [144] A thorough review of case law on police enforcement is contained in the case of Patterson v. Powell 2014 ONSC 1419. Theprinciples set out in Patterson are as follows: -

Section 36 of the Children's Law Reform Act is available to address a present and existing problem, not a future or potential problem.(Paras 14-15). -

Section 36 does not make police enforcement available "as a long-term, multiple-use, on-demand enforcement tool." (Para 16) - Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved.(Paras 21-22) - Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoingenforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24) - Police should be served with notice, if a party proposes a broad order under section 36(4) that they "do all things reasonably able tobe done". (Para 30) - Police enforcement should be used sparingly, in exceptional circumstances, and as a last resort, and then only when it is shown to berequired in the best interests of the child, after considering the risk of trauma to the child. (Paras 44-62) - Chronic non compliance with a custody or access order is "likely ... a problem that police can't fix anyway." (Para 74). (

d) D.E. v W.E., 2022 NBKB 243 at para 91 (

e) Visser v Visser, 2022 BCSC 1198 at para 149 (

f) L.(N.) v M.(R.R.), 2016 ONSC 809 at paras 83 and 85, 76 RFL (7th) 428: Factors to consider in deciding whether to order police enforcement [83] For an excellent review of the factors to consider in determining whether to make an order under CLRA [Children’s Law ReformAct, RSO 1990, c C.12]

section 36, and the cases on the issue in Ontario and elsewhere, see Patterson v Powell, 2014 ONSC 1419. Atthe risk of oversimplifying Pazaratz J’s very detailed and thoughtful decision, I note the following principles from it: •

Section 36 of the Children’s Law Reform Act is available to address a present and existing problem, not a future or potential problem.(Paras 14-15) •

Section 36 does not make police enforcement available “as a long-term, multiple-use, on-demand enforcement tool.” (Para 16) • Police enforcement of custody or access may give rise to a wide range of negative emotions and consequences in the child involved.(Paras 21-22) • Police enforcement may be essential for immediate retrieval of a child from a dangerous or inappropriate situation, but for ongoingenforcement, parties must look to less destructive and more creative alternatives. (Paras 23-24) • Police should be served with notice, if a party proposes a broad order under section 36(4) that they “do all things reasonably able tobe done”. (Para 30)

• 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. (Paras 44-62) • Chronic non compliance with a custody or access order is “likely … a problem that police can’t fix anyway.” (Para 74) . . . [85] As Pazaratz J noted, there is a tendency to forget that

section 36 requires a present, existing reality – that a person is unlawfully withholding a child, or that a person proposes at the time the order is sought to remove a child from Ontario – not a future risk or possibility that a child might not be returned or that a child might be removed. Further, section 36(3) assumes that a motion for a police enforcement clause will be made on notice, at least to the other party. The

section says the order may be made without notice if “the court is satisfied that it is necessary that action be taken without delay.” This is a different test from the usual one for motions without notice as articulated in rule 14(12) of the Family Law Rules . [emphasis in original] [ 72 ] The common thread of these decisions is reference to Patterson v Powell , 2014 ONSC 1419 , 44 RFL (7th) 458 [ Patterson ] , in which Pazaratz J. considered in depth the use of police enforcement clauses.

Patterson is cited in over 40 subsequent Ontario reported decisions. [ 73 ] None of which is to say that the court will never be persuaded to enlist police assistance to enforce court orders, including parenting orders. Only that many of the requests received by this Court, including this one, are not justified and must be declined. Abridgment of service of with notice application [ 74 ] In the without notice application, the Mother also sought abridgement of service for a with notice application scheduled for Regina chambers on Friday September 1, 2023.

That application seeks exemption from the judicial case conference process and the family dispute resolution until after the with notice application is decided. The application seeks primary residence of the Child with the Mother with supervised parenting time for the Father. [ 75 ] The application does not explain to what extent service is to be abridged.

The draft order simply states “The time for service of the Notice of Application is abridged.” The affidavit of service filed states all materials were served on the Father’s lawyer on July 27, 2023. [ 76 ] This part of the without notice application is dismissed because the applicant has not satisfied any of the required steps to obtain a Regina family chambers hearing: (

a) certificate of participation in family dispute resolution : The King’s Bench Act s. 7 - 4 and Rule 15 - 14 (effective July 1, 2022); (

b) certificate of attendance at parenting education program: The King’s Bench Act s. 8 - 1 and Rule 15 - 15 ; and (

c) Judicial Case Conference: Practice Directive #7 – “Mandatory Participation in a Judicial Case Conference before a Chambers Hearing is Scheduled”. [ 77 ] To obtain a hearing date, the parties must either complete those steps or obtain an exemption. [ 78 ] This without notice application does not request an exemption. [ 79 ] The with notice application states that the matter is exempt from a Judicial Case Conference because it was initiated by a without notice application. This is not correct. The with notice application also seeks exemption from family dispute resolution.

Although family dispute resolution may be more difficult in this case, given the no-contact order and residence of the parties in different communities, it is still possible to conduct family dispute resolution by videoconference, especially where, as here, the parties are represented by lawyers. Application dismissed [ 80 ] The without notice application is dismissed. [ 81 ] The Local Registrar is directed to send a copy of this fiat to Rizwan Bajwa and Lee Douglas at the Meadow Lake Office of Saskatchewan Legal Aid, since they are identified as the Father’s lawyers. J. D.N.

ROBERTSON KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 167

Date: 2023 08 16 Docket: FLD-RG-00198-2023 Judicial Centre: Regina, Family Law Division BETWEEN: A.S.J.N. PETITIONER - and - C.A.C.1 RESPONDENT Counsel: Bruce K. Campbell for the petitioner No one appearing for the respondent August 31, 2023 ROBERTSON J. CORRIGENDUM to FIAT of (August 9, 2023) (2023 SKKB 167) [82] Paragraph 42 the last point should read “Skoretz v Skoretz (1963), (SK KB), 38 DLR (2d) 510at 513 (MacPherson J.)” [83] Paragraph 69(

e) should read “through contempt proceedings.” [84] Paragraph 71(

c) should read “V.S.B. v B.L.O., 2022 ONCJ 506 at paras 142-144:” J. D.N. ROBERTSON