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Parental Child Abduction

Published: October 16, 2021

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Parental Child Abduction

A contentious relationship between spouses or partners after divorce or separation can often lead to getting back at each other. In cases where there are children involved, custody usually becomes the focus of disagreements. While most parents choose to battle it out in court, some will simply take the child or children and hide them from the other parent.

It might seem evident that parental child abduction occurred, but it is not as simple as that. Parental child abduction in Canada is a criminal offense and comes with serious consequences. 

Before going off the deep end with allegations of parental kidnapping, it is essential to understand its legal definition, the laws that apply, and when it is appropriate to involve a family lawyer.

Parental Child Abduction in Canada 

According to the Public Prosecution Service of Canada, the definition of parental child abduction is the removal of a child by the non-custodial parent from the custodial parent without the latter’s permission or authority. 

Parental child abduction may be domestic or international.  

International (parental) child abduction, is when the child or children were abducted to another country.  The main international treaty that has been adopted by Canadian Courts is the Hague Convention on the Civil Aspects of International Child Abduction.  However, for this treaty to apply, the country where the child was relocated must also be a signatory to the Hague Convention.

For domestic parental child abduction, the applicable laws are the Children’s Law Reform Act and for situations and the abducting parent that meets the criteria, the Criminal Code of Canada, specifically sections 282(1) and 283(1).

The purpose of criminalizing parental kidnapping in Canada is to compel parents to abide by court orders or legal agreements regarding child custody. The goal is to avoid disrupting children’s lives through the deprivation of stability, security, and continuity.

The two sections address two situations: with and without a custody order. Section 282(1) refers to cases wherein a Canadian court has already issued a custody order. Section 283(1) refers to situations wherein parents have a written agreement, or a custody order from a foreign court, or there is a custody order but the abducting parent is not aware about it or does not believe that there is a valid custody order.

Children Abducted in Canada

Family law often includes measures to handle children abducted (or may be abducted) in Canada by a parent. In Ontario, those measures are embodied in the Children’s Law Reform Act sections 36 and 37. Under the law, courts may order the following:

  • Any person (which may include the custodial parent) or the police service may locate and return the child/ren to the custodial parent.
  • Authorize police service to enter and search premises where the child/ren may be reasonably (based on probable grounds) located.
  • Authorize private investigators and social workers to take a child into custody.
  • Order the potentially abducting parent to:
  • Transfer specific property to a named trustee to be held subject to the terms and conditions specified in the order.
  • Where payments have been ordered for the support of the child, make the payments to a specified trustee subject to the terms and conditions specified in the order.
  • Post a bond, with or without sureties, payable to the applicant in such amount as the court considers appropriate.
  • Deliver the person’s passport, the child’s passport and any other travel documents of either of them that the court may specify to the court or to an individual or body specified by the court.

A custody order is not necessary to start a case if one parent takes a child against the other parent’s will. However, courts will typically intervene only if a custody order exists. If you are afraid that the other parent might attempt to abduct your child, ask your family lawyer to obtain a custody order as soon as possible.

Children Abducted Outside of Canada

Some parents seek to circumvent the law by keeping children outside Canada. In such cases, it would be advisable for the parent in Canada to consult a family lawyer to handle the situation.

The family lawyer can check if the existing custody order in Canada does not allow the child to leave the country without the consent of both parents. If it does, that can help with getting the courts to intervene.

The lawyer can also obtain a custody order in the country where the child is held and enforce it to retrieve the child. It is not a good idea for a parent to attempt to bring the child back to Canada without knowing the exit controls of that country. The safest thing is to let the family lawyer handle everything.

Generally speaking, in these situations, the  Hague Convention on the Civil Aspects of International Child Abduction is an applicable law for signatory countries.

If the location of the child is not known, it is best to request emergency consular assistance. Officials in Canadian embassies and consulates can help:

  • contact authorities in the country where the child was abducted and inquire into their safety and well-being.
  • find out local customs, practices, and other relevant information.
  • locate local lawyers and legal translation services.
  • get travel and Canadian consular information.
  • contact the other parent.
  • contact organizations for missing children in Canada and abroad.

Risk Indicators for Parental Child Abduction

Parental child abduction may result from an impulse, but that is unlikely. In most cases, some signs indicate the risk for future parental child abductions. Some of the risk indicators include:

  • Previous kidnapping by the other parent.
  • Making direct or indirect threats by the other parent to remove the child.
  • Making direct or indirect threats by the other parent to harm the child, themselves, or the parent.
  • Having a history of controlling or violent behaviour.
  • Displaying high levels of anger, resentment, or hostility towards the parent or family.
  • Stalking, harassing, and obsessive behaviour.
  • Constant fighting between parents.
  • Receiving a court ruling against the other parent.
  • Raising unreasonable concerns over the child’s safety in the custody of the parent.
  • Making significant life changes in the life of the other parent, i.e., quitting a job.
  • Liquidating assets and closing bank accounts.
  • Applying for passports, birth certificates, medical records.
  • Altering their appearance.

While these are indicators of risk for parental kidnapping, it does not mean that it will happen. However, it would be best to be vigilant when the other parent shows one or more of these signs.

Situations Where Charges Are Imposed For Child Abduction Cases

If parental child abduction does occur, charges will likely be imposed on the offending parent or guardian. The charges will depend on meeting the requisites either in Section 282 or 283 of the Criminal Code of Canada.

Abduction Done Against a Custody Order (Section 282 of the Criminal Code)

For Section 282 (1) to apply:

  • the child is under the age of 14 years;
  • the parent, guardian or person having the lawful care or charge of a child takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada;
  • the parent, guardian or person having the lawful care or charge of a child that takes, entices away, conceals, detains, receives or harbours that child intended to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child;
  • the parent or guardian or other person having the lawful right to care for a child that was deprived of the possession or custody of the child did not consent to the taking of the child by the abductor;
  • there is no reason to believe that the abductor did not know of the existence or the terms of the court order. 

Abduction Done Without a Custody Order (Section 283 of the Criminal Code)

For Section 283 (1) to apply:

  • the child is under the age of 14 years;
  • the parent, guardian or person having the lawful care or charge of a child takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada;
  • the parent, guardian or person having the lawful care or charge of a child that takes, entices away, conceals, detains, receives or harbours that child intended to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child;
  • the parent or guardian or other person having the lawful right to care for a child that was deprived of the possession or custody of the child did not consent to the taking of the child by the abductor;
  • the parent, guardian or person having the lawful care or charge of a child that takes, entices away, conceals, detains, receives or harbours that child was unaware or did not believe that there was a valid  custody order or a parenting order made by a court anywhere in Canada, (as found in Section 282 (2) OR:
  • No Canadian custody order exists, but parental rights of custody under statute or common law exist (e.g. provincial family law legislation may indicate that parents have joint custody of their children unless the court orders otherwise);
  • No Canadian custody order exists, but custody rights under a separation agreement or a foreign order have been violated. Where the rights of the access parent are not so extensive, resort should be made to civil remedies;
  • There has been a permanent or indefinite denial of a right or access pursuant to an agreement that provides the access parent with a significant degree of care and control over a child with or without a provision permitting the child’s removal from the jurisdiction. Where the rights of the access parent are not so extensive, resort should be made to civil remedies; or
  • There has been a permanent or indefinite denial of the right of access pursuant to a court order, which provides the access parent with a significant degree of care and control over a child. Where the rights of the access parent are not so extensive, resort should be made to civil remedies, which exist in the jurisdiction.

Both Sections 282 and 283 are categorized as hybrid offences which may carry a penalty either as an indictable offence, which is ten years incarceration or summary conviction which is 2 years less a day jail and/or a CAD$ 5,000 fine.  

Laws Governing Parental Child Abduction
Ontario Children’s Law Reform Act The purpose of this provincial law is to discourage parental child abduction in place of due process in the determination of decision-making responsibility, provide effective enforcement of parenting orders, and establish jurisdiction for orders made outside Ontario on decision-making responsibility, parenting time, or contact concerning a child.
Family Orders and Agreements Enforcement Assistance Act This federal act establishes procedures for discovering the addresses of parents and children living in Canada from federal databases to help in enforcing custody orders.
Hague Convention on the Civil Aspects of International Child Abduction As part of the Hague Convention since 1983, Canada is subject to its provisions, which include the process for ensuring the prompt return of children to the State of their habitual residence.

Parental child abduction is a serious offence in Canada. Reach out to one of the family lawyers from Gelman & Associates to get your case started and bring your child back to you. 

Parental child abduction is a criminal offence that affects all parties concerned, especially the children. The courts and authorities are naturally reluctant to intervene in a family dispute unless there is a clear case of criminal conduct. In many cases, the court or the Attorney General (in section 283 cases) may decline to prosecute the offending parent or guardian.Get the Legal Help You Need And Save Your Child

That can be very frustrating to a custodial parent, especially if there is a reasonable fear of harm to the child in the custody of the other parent. If you find yourself in this terrible position, contact Gelman & Associates for the legal help you need to save your child.

We are a team of knowledgeable and experienced family law lawyers who can champion your rights to child custody and access. Our lawyers can guide you through the intricacies of the laws in Ontario, Canada, and international jurisdictions on parental child abductions.

Call 1-844-736-0200 or (416) 736-0200  for an initial consultation. You may also contact us

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - child custody & access

It is not uncommon for someone to want to relocate after a divorce. If you still live in the marital residence, the familiar surroundings and memories may be too much for your heart to handle. Or in the process of reinventing yourself post-divorce you may want to take a new job, move closer to your friends and family, or simply wish to start fresh somewhere new. There are many reasons a person may want to move after going through a divorce, however if you have children you will need to think twice before making a big move.

Emotionally, it can be challenging for a child to move to an unfamiliar place. Often, they are most at ease in a familiar environment with access to family and friends. Changing schools, living in a new city or even a new house can be difficult on a child, especially after dealing with the emotional turmoil associated with divorce.

Legally, there are certain implications to relocating away from the current jurisdiction where the children ordinarily reside. Before moving you and the noncustodial parent can negotiate with the absence of a lawyer, a written agreement about the moce and any changes to visitation that may be needed. If you cannot reach an agreement about the move, you then must file an Application/Motion to the court to hear your matter and for a judge to make a decision before you move. Usually the court requires at least 30 days notice to the other parent of your court Application/Motion. It may take longer to reach an agreement with the other parent or get a court order. It is a good idea to give notice of 90 days before the move, as as soon as possible and to consult with a lawyer first. Upon receiving this notice, they can challenge your proposed change of residence or apply for a variation to the existing custody or access orders.

The leading case that sets out the legal test in determining mobility is Gordon vs. Goertz (1996) 2. S.C.R. 27

Similar to any other action involving variation of an existing custody order, the person challenging the relocation has to show that the move will result in a material change in circumstances affecting the child. Once this has been established, a judge will determine the best interests of the child in light of the relevant circumstances. These relevant circumstances include the existing custody and access relationship, the relationship between the child and the custodial parent, the views of the child, and the reason for the proposed change of residence among other circumstances. As with every other custody proceeding, the judges determination will turn on the best interests of the child. The judge’s inquiry is individualized and will involve all factors relevant to the case at hand.

Because mobility has become so easy in today’s society, often separation agreements or custody orders will address relocation and place specific restrictions on changing residences. Non-removal clauses that ban the extra-provincial removal of children without consent of the noncustodial parent. In these cases, the custodial parent who wishes to relocate will have to initiate the action by placing an application with the court.

If you are contemplating a move, you must consider the emotional needs of your child, as well as your former spouse’s right to challenge your relocation. Typically, courts only allow a custodial parent to relocate if the proposed move is in good faith and not intended to frustrate the noncustodial parent’s relationship with the child. Additionally, if a custodial parent relocates, they must be willing to accommodate the noncustodial parent’s access to the child; sometimes this means that the relocating parent will have to pay the additional costs of access.

In sum, if you are a custodial parent, moving isn’t as easy as just loading up the car and hitting the road – but it is still possible.

Yes, but they will need to establish paternity, especially if the father and the mother separate. Here are the ways to establish paternity as recognized by the court:

  • Act of birth
  • Presumption of paternity
  • Uninterrupted possession of status
  • Voluntary declaration

No. Even when the parents are unmarried, divorced, or separated, one parent cannot keep the child from seeing the other unless the court deems it appropriate to the child’s best interests.

Historically, mothers have been more likely to get sole custody of their child in both consent and contested orders, as they are usually the child’s primary caregiver. However, as more mothers also work outside the home, courts could also rule in favor of the father.

The majority of judges strive to make decisions that are in your children’s best interest. Giving full custody to one parent is usually the best option, except in cases with concerns such as child or substance abuse. This typically means keeping in contact with and maintaining relationships with both parents.
You should do everything possible to prepare for the subsequent child custody negotiations, whether you’re a parent seeking full custody or shared custody:
Be honest with yourself about your ability to manage things alone, in terms of practicality, finances, and other factors. You may get the result you want by presenting the strongest case for custody by doing the following:

  • Make a Strategy: If custody is granted, a court will expect you to be ready. Compile thoughtful replies to hypothetical queries posed in court.
  • Speak with people who have gone through the child custody procedure before you. They may provide you advice and tell you what to anticipate.
  • Judges look for proof of a meaningful relationship in addition to making sure you can provide a child’s practical and basic needs. Simply put, be involved in your children’s lives.
  • Continue to pay child support regularly, whether you’re asking the court for full or shared custody. When you start the procedure, you’ll want to make sure you have a strong track record.
  • Keep a detailed log of your visitation schedule. This is a crucial aspect of obtaining child custody. Visitation records reflect how often you see your children under the present arrangements and your dependability, as well as dedication to them.
  • During all child custody hearings, the court will inquire about acceptable living accommodations. Even if you live in a tiny apartment, you should create a unique and secure environment for your child.
  • Courts may determine child custody in part by how you treat your child’s other parent. Being hostile or unpleasant to the other parent makes collaborative decision-making more complicated and can break apart parent-child ties. As a result, judges are more inclined to favor the parent who isn’t behaving badly.
  • While parents typically spend a lot of time thinking about what they believe is best for their children, children’s perspectives are sometimes overlooked. The court will be interested in learning what the children desire and will most likely question them directly at some point throughout the proceedings. You can better inform your decision-making by asking your child what they think.

No. Parenting time and child support are different from each other. While it is a child’s right to be provided with financial support, it is also their right to spend time with their parents. Thus, even if the child support was cancelled the parent formerly supporting can still enjoy parenting time with the child.

“There is no fixed age for when a child can say which parent they want to live with after a divorce. However, by law, a child must be 16 years old to decide on this matter. The exception to this is when there is a court order stating that a child/ren must live with one parent until they turn 17 or 18.
“

Under certain circumstances, it is possible to legally prevent your child/ren’s father from seeing or contacting them. It may be necessary if he presents a potential danger to your child/ren. If you were never married to the father of your child and there is no court order saying otherwise, you can do anything you want until paternity is confirmed.

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