It is against the law in Canada to abduct a child, including your own. A child could be considered abducted in Canada, if one parent takes the child out of the country either without the permission of the other parent or without legal authority.
Not only is the abduction of children by a parent forbidden in Canada, it’s also forbidden under international statute.
Hague Convention on the Civil Aspects of International Child Abduction (The Hague Convention)
Under the Hague Convention, an application can be made to have the child returned to Canada. Canada is a party to the convention and all Canadian provinces and territories have adopted and have laws implementing the Hague Convention.
However, there are conditions that have to exist before the Hague Convention can step in. According to article 3 of the Hague Convention:
The removal or the retention of a child is to be considered wrongful where:
- it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
- At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Only if the above conditions exist can an application to retrieve a child be successfully considered.
Criminal Code of Canada
The Criminal Code has two sections that deal with the abduction of a child by a parent or guardian: section 282 and 283. If the child is under 14 years of age and the parent or guardian “takes, entices away, conceals, detains, receives or harbours that person, in contravention of the custody provisions of a custody order” then they could be found guilty of either an indictable or summary offence.
That means the punishment for abduction of a child in contravention of a custody order could see the parent be sentenced to anything from a fine and a few months in prison (if convicted under summary conviction) up to ten years in prison (if convicted under indictable offence).
As being charged with abducting one’s own child is quite a serious offence, the Crown prosecutors have to discuss possible charges against a parent, under s. 282 of the Criminal Code, with the chief federal prosecutor before going ahead with such charges.
The Crown has to take a lot of factors into consideration before looking at charging a parent under either of the Criminal Code sections. For example, under s. 282, the Crown looks at:
- What kind of custody order was in place?
- Is there a reasonable prospect of conviction?
If the Crown is looking at laying charges under s. 283 of the code, then the Crown has to get the consent from the attorney general or counsel instructed to act on behalf of the attorney general before proceeding.
The provinces and territories regulate family law and custody and access agreements.
Accordingly, the provinces and territories have several acts dealing with family law, and issues such as divorce and child custody and access.
As has been noted above all provinces and territories have adopted the Hague Convention and abide by it. For example, in British Columbia, s. 80 of the Family Law Act states that the Hague Convention has the force of law in the province.
In addition to the above, custody orders are determined under provincial statute. If a custody order states that the child is to remain in the province or territory, then a parent may not remove said child.
Section 20 of the Divorce Act allows a custody order to be enforced throughout all jurisdictions in Canada. If the custody order states a child is to remain within the jurisdiction, a parent cannot take the child out of the jurisdiction.
You should consult a family lawyer if you believe your child may be under threat of abduction by his or her parent.
International Child Abduction
Parental Child Abduction Public Prosecution Service of Canada