Leaving a Violent Partner With Your Child: Custody Risks in Ontario

If you are afraid of your partner, the safety of you and your child comes first. But many parents who are thinking of leaving worry about a second problem: that the other parent will say you took the child, or that leaving will hurt your position in a later custody dispute.

This article explains, in general terms, how Ontario law looks at a parent who leaves a violent relationship with a child. It covers the risk of an abduction allegation, how courts treat family violence, and practical steps to protect yourself. Every situation is different, so it is worth speaking to a lawyer about yours as early as you safely can.

Does leaving hurt your custody claim?

Justice Canada says that if you leave an abusive situation you can still apply for custody (parenting) of your children.

Parents also have the right to parenting time unless a court decides otherwise. That works in both directions: the other parent generally keeps a right to parenting time too, so a court will usually be asked to decide how time and decision-making should be arranged for your child, with safety in mind.

If the children might be in danger, Justice Canada says you can contact police to take you to a shelter or safe place. If a child has been taken by a family member, Ontario's guidance is to call 911 or local police.

When taking a child can become a crime

The Criminal Code abduction offences cover children under 14. If there is a custody or parenting order, a parent who takes, entices away, conceals, detains, receives or harbours the child in contravention of it, with intent to deprive another parent or guardian of possession, can commit abduction.

The more important point for a parent leaving a relationship is that abduction of a child under 14 can be an offence even when there is no order at all. Having no court order does not make a move risk-free. A prosecution under that section cannot start without the consent of the Attorney General or counsel they instruct.

These offences are hybrid, which means they can be prosecuted as indictable offences, with a maximum of 10 years, or by summary conviction. In practice, the facts of each case matter a great deal, and you should get legal advice rather than assume you are safe or at risk.

The imminent harm defence

The Criminal Code recognizes that protecting a child, or escaping danger, is different from a wrongful taking. There is a defence to the abduction offences if the court is satisfied the taking was necessary to protect the young person from danger of imminent harm, or the accused was escaping from danger of imminent harm.

Keeping a record of what happened, rather than relying on memory later, is a practical step. How the defence applies depends on your situation, so it is worth confirming with a lawyer.

How Ontario courts look at family violence

Under the Divorce Act, only the child's best interests count when making a parenting or contact order, and the court gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Family violence and its impact is a listed factor, and the court looks at whether there is a pattern of coercive and controlling behaviour.

Family violence is defined broadly. It includes conduct that is violent or threatening, a pattern of coercive and controlling behaviour, or conduct that causes a family member to fear for their safety, and it includes physical, sexual, psychological and financial abuse and harassment such as stalking, whether or not it is a crime.

The court also applies the principle that a child should have as much time with each spouse as is consistent with the child's best interests. That principle is always subject to best interests, so safety concerns can change what is appropriate. If you are not married, parents in Ontario generally use the Children's Law Reform Act instead, and a judge must still act in the child's best interests and consider family violence.

Protecting yourself and building a record

Justice Canada notes that separation can be a particularly dangerous time and recommends a safety plan for you and your children where there is family violence. A safety plan is a practical step, such as knowing where you will go and who you will contact, and you can build one with a shelter, a support service or a lawyer.

• Write down dates, places and what was said or done, as soon as you safely can.
• Keep photos, medical records and police report numbers in a safe place the other person cannot reach.
• Save relevant messages, but plan to give a court only the necessary excerpts, not everything.
• Think carefully before recording conversations. A parent who is a party to a call can generally record it, but secretly recording a call between other people is a risk.
• Keep copies of any court orders or agreements, since Passport Canada says those with custody, decision-making, parenting time, mobility or passport clauses must be submitted with a child's passport application.

If you fear the other parent might apply for a passport for the child without your consent, Passport Canada describes adding a child's name to a safety list.

What to do next

If you are in immediate danger, call 911. Once you are safe, the usual goal is to get a written arrangement or order in place. Ontario explains that an informal arrangement can be hard to enforce, and that either parent can apply for a parenting order if you cannot agree. You can apply to family court for a child's return even where a child was taken out of Ontario.

Where there is an immediate danger to someone's health or safety, or that a child will be removed from Ontario, a court may hear a motion without notice to the other parent. Whether that fits your situation is something a lawyer can confirm.

• Get to safety first, and contact police or a shelter if needed.
• Gather your records while keeping them private.
• Speak with a family lawyer before or soon after you leave, ideally with your timeline in hand.
• Ask about an urgent or interim parenting order that reflects the safety concerns.

Frequently asked questions