Area of Law: Children and the Law
Answer # 0989
Finding abducted childrenRegion: Ontario Answer # 0989
Statistics from Canada’s Missing Children/Persons and Unidentified Remains (MC/PUR) Database reveal there are hundreds of parental abductions of children and several dozen stranger abductions of children in Canada each year. Parental abductions are very often complex and emotional. In most cases, the children are innocent victims in a vicious tug-of-war between parents. Most parental abductions involve international border crossings. Although stranger abductions represent a smaller number of missing children in Canada, they are undoubtedly the most horrifying, and receive greater public attention.
Abduction is a criminal offence
The Canadian Criminal Code makes it an offence to abduct a child under 16 years from a parent or guardian with lawful custody. It is also an offence to abduct a child under 14 years from a parent or guardian where there is a custody order in effect. The Criminal Code provides that consent of the custodial parent is a defence as is taking a child to protect him or her from imminent danger. However, consent of a child is not a legal defence. It is also criminal to disobey a court order, such as a custody order. If all else fails, the Criminal Code section dealing with kidnapping may apply.
Parental child abduction: finding a child and enforcing a custody order
In most cases, the Criminal Code can’t be used in cases of parental child abduction. To find or enforce a custody order, a parent or guardian must turn to the civil courts for help. The options available for enforcement differ from one jurisdiction to another, but may include the following:
- A Court Order that where a child is unlawfully withheld, a peace officer may enter and search any place there are grounds for believing the child to be
- A Court Order that a person must not enter premises where the child resides from time to time including premises the person owns or to which the person has a right of possession
- A Restraining Order not to molest, annoy or harass the applicant or the child
- Access to information to enforce a custody order
- A Court Order to prevent the removal of a child from the jurisdiction which may also include transferring specific property to a trustee, making payments to a trustee, posting a bond, delivering the person’s passport, the child’s passport and any other travel documents
- A finding of contempt of court
- A Court Order to return a child who has been wrongfully removed to or retained in the jurisdiction
- A Court Order that before changing a child’s place of residence, the custodial parent provide any person granted access with at least 30 days’ notice of the change, the time at which the change will be made and the new place of residence
The Divorce Act
If a couple are in the process of getting a divorce, or have already been granted one, the federal Divorce Act applies. Court orders made under the Divorce Act are legal throughout Canada. Once the orders are registered in the court of any province, they have effect and are enforceable throughout the country. This means that if a parent has obtained a custody order specifying that a child is not to be removed from the province they reside in, enforcement of the order usually results in the return of the child.
Ontario’s Children’s Law Reform Act
There are several situations, however, where the Divorce Act does not apply, and parents must then turn to provincial legislation. Such circumstances include where the parents:
- are not legally married
- are biological parents, but are not legally married
- are legally married, but are not getting divorced
Ontario offers one of the most extensive services to help with custody in parental child abduction cases. Ontario’s Children’s Law Reform Act provides powerful legal tools to gain access to information to locate a missing child. A court can 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.
Rules of Civil Procedure
Ontario’s Rules of Civil Procedure has also been used to locate abducted children. This Act provides that a court may order the examination of any party who has knowledge of a matter and may order them to produce any documents and other things that are not privileged. Case law has held that this measure may not be invoked until all other reasonable steps have been exhausted.
Extra provincial enforcement of custody orders
Every province and territory in Canada has inter-jurisdictional custody and access enforcement legislation. Generally, this legislation provides that a custodial parent can make an application in another province to enforce the order for custody or access to a child.
For more information about child abduction laws in Canada, contact the Department of Justice. For assistance with enforcement of a court order, consult a family law lawyer.
To have someone conduct a missing person or child abduction investigation and for other investigation services, contact our preferred Investigators, Smith Investigation Agency .
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