Legally speaking, parental child abduction is the removal or detainment of a child contrary to an access or custody provision in a court order or agreement. Unfortunately, each year hundreds of children in Canada are abducted by a parent. Fewer than 10 percent are returned to Canada.
Quite often child abduction is triggered during the process of separation and divorce when parents are in dispute over matters of custody and access. There are many subjective reasons a parent may resort to child abduction; however, the law sees no justification for unilaterally forfeiting a child’s right to see the other parent.
Recent attention to the issue of child abduction has helped in recognizing the act as a criminal offence. The unauthorized removal of a child is no longer viewed as simply a custody dispute between parents.
How Federal & Provincial Law Address Child Abduction
In Canada, both provincial and federal legislation address custody and access matters. If parents have formally divorced or are in the process of obtaining a divorce order, the Divorce Act upholds the validity of parental rights contained in a court order or judgment. The Divorce Act does not specifically mention child abduction, but orders for custody and access obtained during the process of a divorce are enforceable throughout Canada under section 20 of the Act.
If parents are not legally married, or if divorce proceedings have not been initiated, Ontario’s Children’s Law Reform Act (sections 36 and 37) governs child custody violations. If you have an order under Ontario’s Children’s’ Law Reform Act but your child has been removed to another province, you may need to file that agreement with a family court in that province in order to have local authorities enforce your parental rights.
For parents who do not have a formal agreement in place and who fear their child is about to be abducted, or discover their child has already been abducted, an Ontario family law lawyer can help with obtaining an ex parte order for interim custody, and a provision in the order stipulating that the child is not to be removed from the jurisdiction without that parent’s consent. “Ex parte” means going to court without providing notice to the other party.
International Child Abduction & the Hague Convention
In addition to domestic legislation, Canada is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, a multi-jurisdictional agreement addressing international child abductions. There are currently 89 signatory countries under the Convention, each of which is committed to returning wrongfully removed children to their habitual residence, whatever the country may be.
Under the Convention, parents have one year following the date of the wrongful removal or retention to apply for their child’s return, and to have the Convention’s return mechanism applied. After the one-year period, a parent may still apply for the return of the child; however, the abducting parent has the opportunity to prove that the child has become settled in the new environment.
If a child has been abducted to a non-signatory jurisdiction, the Convention does not apply. Parents instead must work with the RCMP and Consular Services. The RCMP will work with foreign authorities (such as INTERPOL) to locate abducted children. Consular Services will help parents connect with the consulate in the foreign jurisdiction to initiate proceedings abroad. In addition to government institutions, there are many non-government organizations that can help parents locate wrongfully removed children. In Ontario, missingkids.ca is devoted to assisting parents to locate an abducted child and to coordinate recovery services.
For more information on the legal process surrounding child abductions, contact the Feldstein Family Law Group P.C. at (905) 581-7222 to meet with an experienced lawyer specializing in wrongful removal proceedings.