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
| Law | Description |
|---|---|
| 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 (844) 736-0200 for an initial consultation. You may also contact us
