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Custody of Children
116 Abduction of Children An abduction occurs when a parent takes a child out of the possession of and against the will of the child's other parent. The act of abducting one's own children is dealt with by family law and criminal law. This is looked at by the Courts as a serious matter if the parent who has custody of the child has a court order or a signed agreement.
- Abduction under family lawFamily law, such as the Ontario Children's Law Reform Act, has some methods, which attempt to prevent the abduction of children by their parents. Courts may restrict the issuing of passports, for example, or set restrictions on access to the children. If a parent fears that a child may be abducted by the child's other parent then a lawyer should certainly be consulted immediately.
If a child has been taken by one parent against the will of the other parent then a pre-existing custody order is not necessarily required in order to initiate proceedings. However, courts usually deal with parents who abduct their own children after an interim custody order has been granted to the child's other parent. Generally, a custody order should be sought in the province in which the child is ordinarily resident before the abduction. A court in the child's ordinary province of residence has the power to grant custody even if the child has been taken out of that province.
Courts have the power to order the police to enforce a custody provision that has been contravened by a child's parent. All of the provinces are bound by a custody order that has been made under Canada's Divorce Act. If a custody order has been made under provincial law, such as the Children's Law Reform Act, then the other provinces are not necessarily bound by that order. Nevertheless, the provinces generally cooperate to enforce provincial custody orders that are deemed to be in the best interests of the child.
Locating and seeking the return of a child who has been abducted from Canada to another country can be particularly difficult because it requires cooperation with the other country's government. For participating countries, the Hague Convention On the Civil Aspects of International Child Abduction enforces custody orders for children under the age of 16 who have been taken from their habitual country. A custodial parent should be well advised to protect their custodial rights if the non-custodial parent wishes to take the child on a holiday to a country where the non-custodial parent was born, and if that country has not become a party to the Hague Convention.
Courts will consider factors such as the child's habitual place of residence and how long the child has been in the new place of residence. If a court finds that a child has been wrongfully removed under the habitual country's laws, and that it would not be contrary to the child's best interests, then the child will be returned.
The provincial Attorney General should usually be contacted to initiate a proceeding under the Hague Convention. Another agency which deals with the abduction of children by their parents is the Federal Orders and Agreements Enforcement Unit, under the Federal Department of Justice. In addition, provincial police forces work with the Missing Children Registry of the R.C.M.P.
- Abduction under the criminal lawParents or guardians may also be charged under the Criminal Code for abducting their own children who are under the age of 14. The criminal offence of abduction occurs when a parent takes the child out of the possession of and against the will of the child's other parent, or otherwise contravenes a custody provision made by any Canadian court.
The essential element of the criminal charge of abduction is the intent to deprive the other parent of possession of the child. An abduction has occurred when an offender could foresee that his or her act would certainly deprive the other parent of the possession of or the ability to exercise control over the child.
The child's consent or lack of consent is not relevant to the criminal charge of abduction. An abduction occurs when a child is taken against the will of the child's parent or guardian, even if the child takes an active or leading role.
An honest but mistaken belief as to the legal effect of a custody order can be a valid defence to the criminal charge of abduction. However, it is extremely difficult to prove that an honest mistake was made. Offenders may also plead that they were protecting either the children or themselves from immediate harm, usually from the other parent. This matter becomes very complicated when both parents have joint custody and the child spends equal time with each parent.
If no custody order has been made then the consent of the Attorney General is necessary before the criminal charge of abduction can be laid against a child's parent or guardian. The abduction must be reported to the police and a missing person report filed. A Canada-wide arrest warrant will then be issued for the offending parent or guardian. This process may be faster than proceedings under family law. However, the Criminal Code does not provide for the return of a child to his or her parent or guardian.
- The consequences of a criminal charge of abductionAbduction is a very serious offence under the Criminal Code. The term of imprisonment for abduction of a child under 14 is up to 10 years.
The criminal offence of abduction does not automatically terminate an offender's existing right to custody of his or her child under the Children's Law Reform Act. Nevertheless, because custody rights are granted in accordance with the child's best interests, the criminal conduct of abduction will be relevant to the court in considering an offender's custody rights.
It is important that when an abduction occurs that the custodial parent take immediate steps to get sound legal advice. For legal assistance in the case of a child's abduction, you should contact the police and consult a lawyer as soon as possible.