Area of Law: Family Law
Answer Number: 116
Abduction of children by a parentRegion: Ontario Answer Number: 116
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An abduction by a parent occurs when one 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 both family and criminal law. If the parent who has custody of the child has a court order or a signed agreement, the courts and the police can take several measures to assist in the return of the child.
Abduction under Family Law
Abducted children in Canada
Family law, such as the Ontario Children’s Law Reform Act, provides some measures, which help 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. A court can also order the provincial health plan, registrar of motor vehicles and other departments to provide the address of a suspected abducting parent to an applicant. Even lawyers can be ordered to breach their solicitor-client privilege and provide an address on the basis that privilege cannot be used to commit a civil wrong. Interestingly, court applications to obtain records held federally by Canada Revenue Agency have been denied.
In addition to orders for information, the Children’s Law Reform Act also provides that a court may give authority for law enforcement officers to locate, apprehend and deliver a child back to a custodial parent. This includes orders to enter and search in the appropriate circumstances. Further, the Act permits a court to authorize private persons such as private investigators and social workers to apprehend a child. However, private persons may not be granted the authority to enter and search a private premises.
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 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 was 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.
All 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 co-operate to enforce provincial custody orders that are deemed to be in the best interests of the child.
Abducted children taken outside Canada
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 Family Orders and Agreements Enforcement Assistance Unit, under the Federal Department of Justice.
In addition, when dealing with the abduction of children by their parents provincial police forces also work with National Missing Children Operations (NMCO), part of the RCMP’s National Centre for Missing Persons and Unidentified Remains (NCMPUR). NMCO was formerly known as both the Missing Children Registry, and National Missing Children Services.
Abduction under Criminal Law
Parents or guardians may also be charged under Canada’s 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 abduction
Abduction 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 assistance, you should contact the police and consult a lawyer as soon as possible.
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