- A parent can commit the Criminal Code abduction offence even when no parenting order exists, but no proceedings under s. 283(1) may be started without the consent of the Attorney General or counsel instructed by them.
- Without an order, both parents generally have equal decision-making rights, and a court that is satisfied a child is being unlawfully withheld can direct the police to locate and return the child.
- No one is guilty of the abduction offences if the taking was necessary to protect the child from danger of imminent harm, or if the person was escaping from danger of imminent harm.
Your child's other parent has taken the child, or kept the child after a visit, and you have no court order. You may be wondering whether this is a crime, whether the police will act, and how to get your child back.
This article explains how Ontario and federal law treat a parent who takes or keeps a child. It covers the criminal side and the steps available in family court. It is general information, not advice on your situation.
Can a parent be guilty of abducting their own child?
Yes. Under Criminal Code s. 283(1), a parent who takes, conceals or detains a child under 14 with intent to deprive the other parent of possession is guilty of an offence, whether or not a parenting order exists. The maximum penalty is 10 years on indictment.
Section 282 covers the same kind of conduct when it breaches a custody or parenting order. So an order makes the situation clearer, but it is not required for the offence in s. 283.
There is also a limit on prosecutions. No proceedings under s. 283(1) may be started without the consent of the Attorney General or counsel instructed by them. In practice, this means a prosecution is not automatic just because a parent has taken a child.
Is there a defence?
Yes. Under Criminal Code s. 285, no one is guilty of the abduction offences if the taking was necessary to protect the young person from danger of imminent harm, or if the accused was escaping from danger of imminent harm.
This matters for parents leaving a violent home with a child. Whether the defence fits depends on the facts, so a lawyer can help you assess it. If safety is the reason you left, keep a record of what happened and why.
Your rights when there is no court order
Parents have an equal right to decision-making responsibility for their child, whether or not they were ever married. That means one parent cannot assume the other has no say.
There is an exception for separated parents. If the parents live apart and the child lives with one parent with the other's consent, implied consent or acquiescence, the other parent's right to exercise decision-making responsibility is suspended until a separation agreement or court order says otherwise. Their entitlement to parenting time is not suspended.
In plain terms, if you let the child live mainly with the other parent, you may lose the practical right to make major decisions for now, but you keep your right to parenting time. Which law applies also depends on whether you were married and divorcing, since the Divorce Act and the Children's Law Reform Act (CLRA) have parallel but separate sections.
What the parent left behind can do in court
Normally no motion may be heard before a case conference on the substantive issues. Rule 14(4.2) makes an exception where the court finds urgency or hardship, or that a case conference is not required for some other reason in the interest of justice. Local practice directions on urgency differ by court location, so check the one for your court.
A motion may be made without notice to the other parent in limited cases:
- when notice is unnecessary or not reasonably possible
- when there is an immediate danger of the child's removal from Ontario
- when there is an immediate danger to the health or safety of the child or the party
- when serving notice would probably have serious consequences
In the removal and danger cases, the delay of serving notice must also probably have serious consequences.
If a court is satisfied a child is being unlawfully withheld, it may authorize the applicant to apprehend the child, and may direct the police to locate, apprehend and deliver the child to the person named in the order. That order expires within six months unless a longer period is necessary.
Passports, travel and enforcing orders
Where a person is barred by court order or separation agreement from removing a child from Ontario, the court may make protective orders, including ordering delivery of the person's passport, the child's passport and other travel documents.
If you think your child is in danger or at risk of being taken out of the country, Ontario's guidance is to call the police right away.
Once there is an order, ignoring it has consequences. You can be fined or jailed for not following a court order on decision-making responsibility, parenting time or contact. Options include:
| Remedy | What it allows |
|---|---|
| Contempt motion | An order other than a payment order may be enforced this way; a person found in contempt may be imprisoned on just conditions or fined |
| Other orders for non-compliance | The court may make any order necessary for a just result, such as costs or dismissing a claim |
| Ontario Court of Justice contempt | It may impose a fine or imprisonment for wilful contempt of, or resistance to, its process or orders under the CLRA, except restraining orders under s. 35 |
What to do next
- If your child is in immediate danger or may leave the country, call the police right away.
- Write down dates, messages, and where you believe the child is.
- Gather any separation agreement, order, passports and travel documents.
- Do not take the child back yourself without understanding the risks; speak to a family lawyer promptly.
- Ask a lawyer whether an urgent or without-notice motion fits your facts.
- If you left to escape harm, keep records and get advice about the s. 285 defence.
Frequently asked questions
Can the police charge a parent who has no court order against them?
The offence in s. 283 applies whether or not a parenting order exists. However, no proceedings under s. 283(1) may start without the consent of the Attorney General or counsel instructed by them. Whether charges are laid depends on the facts.
What is the maximum penalty for parental abduction?
The maximum penalty under s. 283(1) is 10 years on indictment. Section 282 covers the same conduct in breach of a custody or parenting order.
Can a court have police bring my child back?
If a court is satisfied a child is being unlawfully withheld, it may direct the police to locate, apprehend and deliver the child to the person named in the order. The order expires within six months unless a longer period is necessary.
Can I stop the other parent from taking my child abroad?
Where a person is barred by court order or separation agreement from removing a child from Ontario, the court may order delivery of passports and other travel documents. If you think your child is at risk of being taken out of the country, Ontario's guidance is to call the police right away.
Sources
- Children's Law Reform Act, R.S.O. 1990, c. C.12 (e-Laws) — Ontario e-Laws
- Family Law Rules, O. Reg. 114/99, r. 14 (e-Laws) — Ontario e-Laws
- Ontario.ca – Parenting time, decision-making responsibility and contact — ontario.ca
- Criminal Code, R.S.C. 1985, c. C-46, s. 283 — Justice Laws (federal)
- Criminal Code, s. 285 — Justice Laws (federal)
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