As we shed the winter blanket and invite spring back into our lives, people tend to go out, socialize more, relax and have fun. With the better weather upon us, sadly, in family law, we generally see an uptick in work at this time of the year. Conflicts in relationships arise at all times of the year, but the spring months seem to welcome relationship discord. The vast majority of family law disputes are resolved without the intervention of others, whether they be mediators, lawyers or judges. This also includes the police. They are a vital service in our community, and it is most unfortunate that they get called unnecessarily to some disputes, taking them away from true emergencies. But there are times when they must be called, and when they are called, the police will respond accordingly.
This blog will deal with when you should (and should not) call the police to get involved in your family law matter. As with other blogs, it is not a comprehensive list, but rather, it will address some of the more common occurrences that invite police attention, whether merited or not. The opinions are my own, and other lawyers may disagree with my comments. However, please exercise a high degree of caution – if you call the police, and if they decide to come to your home, once they do, you all lose control of what happens next.
When To Call The Police
There are 3 main occasions when a client should/must call the police. These are when there is a:
- Risk to Life;
- Risk of Harm; and/or,
- Risk of Relocation.
With respect to “risk to life”, it may sound trite to say that if you are in a situation where your life, or the life of your loved one(s), is at imminent risk, call the emergency police number (911), as opposed to the non-emergency number for your local police force. Once you call the police, they will respond and send officers, and likely other first responders too, to do what they can to ensure that lives are preserved. This is the most important call you can ever make, and any delay in doing so could result in your death, or the death of a loved one.
However, having said that, please understand that if you make the call, but it is determined that your life or the lives of others were not at risk, the police may charge you for mischief or obstruct justice. Do not call 911 if you simply want to “send a message,” “scare the other side” or “let them know you are serious about the family issues.” As well, if the police attend and they discover other unexpected criminal infractions, e.g. drug use/manufacturing, possession of or distribution of child pornography, firearms possession, outstanding bench warrants, immigration holds, etc., they will charge the offending parties. If they aren’t sure, they may just charge/arrest everyone present and let the courts decide who is guilty and is not guilty later on.
With respect to “risk of harm,” this is a situation that is one-step down from risk to life. If you or a loved one are about to be assaulted, once again, call 911 and let them know what is going on. Even if you call and the phone call is not completed, police will attend to ensure that all is well. Some may think that it is no one’s business if two parties get into an altercation. That’s not true. As a society, we must all take the risk of harm/life serious with regards to intimate partner abuse (or domestic violence, as it is more commonly known). From a purely legally consequential perspective, the failure to call the police and/or to attend for medical treatment as a result of the harm you or a loved one has suffered will almost always be used against you by the aggressor in family to show that the event never actually took place. As with the risk to life, please understand the consequences of calling 911 if the matter is not a true emergency.
If the situation is more a matter of being harassed, followed, or stalked by the other party, or by people on their behalf, then you should still call the police, but not the 911 number. That is reserved for in-the-moment emergencies. Call the local non-emergency phone number. Every force should have one. In Hamilton, where I am based, it is 905-546-4925. Someone will triage the matter by phone and, if needed, ask you to attend in person to file a report. This is important to do to create a proper paper trial for any future criminal, civil and family law litigation purposes.
However, please understand that many police forces have an internal policy which may require them to charge both sides of a domestic call if there are indications that there has been violence perpetrated by both parties. Do not let this dissuade you from calling the police and to have the matter looked into. Trained officers can assess the situation and decide whether it is a mutual fight or whether an assault has taken place. As well, be aware that if the police come to the scene and determine that there has been an act of violence with a child or children present, the police have an obligation to call the local child welfare agency (the CAS). They will attend and interrogate the children, if they are of age, or they will place the children somewhere safe for the time being.
Many clients I have dealt with will use both of these considerations as a reason to not call the police. Please heed this warning: it is better to be judged by many others at a later date, rather than to be carried by six of your friends and family at your own funeral.
With respect to “risk of relocation,” you should contact the police if you believe that your child or children have been apprehended by the other parent, a family member of the other parent, or someone else acting under false authority to do so. This does not mean that you should call the police if your ex has picked up the child from school 30 minutes early for their scheduled weekend visit. Even if the other side picks the child/children up at a time they were not supposed to do so, do not get the police involved until you have at least had the chance to speak with the other parent to find out why they did what they did. There may be simple answer.
But if there is no simple answer, or there is no answer at all from the other side, then yes, call the police immediately! They will want to know if you have an original copy of the current custody order (now called an “order for decision-making responsibility”) and whether the other side has the child’s/children’s passports. Given your relative proximity to the American or other provincial border, you may also ask them to act quickly and notify border patrols, to be on alert. If there is a risk that the child/children may be taken out of country, and especially to a country that is not a signatory to the Hague Convention, then the police will need to know this information as they will have to alert airport officials as soon as possible. If you are in this situation, every minute counts so make your call to police immediately.
There are some other occasions to have police present, such as when a spouse/ex-spouse/partner/ex-partner is asked to return to the home to retrieve their immediate belongings upon arrest, or when they must come back to retrieve the balance of their belongings. In those situations, it is a good idea for the police to be present, to make sure that everyone “keeps the peace.” This should be arranged with the police (if they are inclined to help, as not all of them are so inclined) and scheduled well in advance through non-emergency services personnel.
When Not To Call The Police
There are many examples of when you should not call the police. Matters of mere triviality, where there may be minor breaches of the court order, do not warrant police involvement, let alone a call to the emergency number. Notwithstanding that, many clients feel that the police must get involved to force the exchange of a child/children pursuant to an agreement or a court order. Let me explain the problems in taking such actions.
First, the police will not enforce a separation agreement, a “consent,” or any “minutes of settlement” that have been drawn up by lawyers or by the parties themselves. There is no authority in those documents to compel the police to act. If you do call, expect a response such as, “Sorry, we cannot help you, it’s a civil matter.”
Second, even if you have a court order (and it had better be the original, with the red seal of the court, and signed by the judge or clerk of the court), if it does not have a “police enforcement clause,” the police will not enforce the order. This begs the question – why do the courts not add the “police enforcement clause” to every order? There is a good reason for same.
Pursuant to section 36 of the Children’s Law Reform Act, a party can ask the court to make an order that the police force having jurisdiction over where a child is (or children are) situated, the police force shall locate, apprehend and deliver the child to the parent who has lawful authority to have care of them. The act of having the police coming to one’s home and enforcing the terms of a court order for decision-making responsibility (custody) and parenting time (access) can be extremely embarrassing, upsetting and even traumatizing for the child or children. Think it about from the child’s eyes: a stranger (the police) is coming to forcibly get them and take them away from their loved ones (their parent, the parent’s new partner, other half-siblings, etc.) and bring them to their other loved ones (their parent, the parent’s new partner, other half-siblings, etc.). The child/children may not comprehend what is going and wonder whether they have done something wrong, or fear for what might happen to the parent from whom they have been torn away. The anguish and guilt associated with this may last a lifetime.
Although this sounds overly dramatic, it is not – the courts are highly attuned to what is best for a child, and not necessarily for the parent. If the child is not in immediate danger by staying with that parent, there may be some other court remedy to address the wrong that has been done by the contravening parent. So, do not be in a hurry to rush to court to get the police assistance clause added to your court order after a single act of rebellion, as you may find that the courts are reluctant to order same. This is not to say that such violations of the court order should be permitted or allowed to go without redress. If the pattern continues, then return the matter to court immediately and have a judge address the situation with the offending party, to ascertain the reasons for same, and failing which, to be warned of what will happen to them if this unmerited action continues.
Finally, it may also seem trivial to say this, but do not call the police if the other side has not paid their child support or spousal support to you. There are instances when I have had prospective clients call me to say that they have taken this action, only to be told by the police that it is a civil enforcement matter. They’re right. Despite any pressing and immediate need for the money, it is not a police issue.