Can a Parent Take a Child Without Permission in Ontario?

Your ex has taken the child, or has not brought the child back, and there is no court order yet. You may be wondering whether that is even legal and what you can do today.

The answer depends on the facts, including whether there is an order or agreement, where the child is, and whether anyone is at risk. This article explains the general rules in Ontario and the main options, so you can decide when to get legal advice.

Where you stand when there is no order

Under the Children's Law Reform Act (CLRA), a child's parents have an equal right to decision-making responsibility for the child, whether or not they were ever married. Before an order or agreement exists, neither parent usually has a better legal claim than the other.

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 practice, this means that letting a child live mainly with the other parent can affect your decision-making rights, though not your parenting time. If you did not agree to the arrangement, that may matter, and it is worth raising with a lawyer.

The criminal side: parental abduction

Parental abduction is a crime. 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 conduct when it breaches a custody or parenting order.

• No proceedings under s. 283(1) may be started without the consent of the Attorney General or counsel instructed by them.
• 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.

A parent who leaves with a child to escape danger of imminent harm is not guilty of the abduction offences under s. 285. Whether a particular situation fits is a question for a lawyer.

Urgent court options

Most family court motions cannot normally be heard before a case conference on the substantive issues. The Family Law Rules make an exception where the court finds a situation of urgency or hardship, or that a case conference is not required for some other reason in the interest of justice (rule 14(4.2)).

A motion may also be made without notice to the other side in several cases under rule 14(12). These include the following:

• notice is unnecessary or not reasonably possible
• there is an immediate danger of the child's removal from Ontario
• there is an immediate danger to the health or safety of the child or the party
• serving notice would probably have serious consequences

In the removal and danger cases, the delay of serving notice must also probably have serious consequences. What counts as urgent can also depend on the practice directions of the Superior Court in your region, which differ, so check the current direction for your court location on ontariocourts.ca.

Orders to find the child and keep the child in Ontario

Where a court is satisfied that a child is being unlawfully withheld, it may authorize the applicant to apprehend the child. It may also direct the police to locate, apprehend and deliver the child to the person named in the order (CLRA s. 36). The order expires within six months unless a longer period is necessary.

To reduce the risk of the child leaving the province, a parenting order can include a condition stopping a party from removing the child from Ontario without consent or a court order. Where a person is barred by court order or separation agreement from removing a child from Ontario, the court may make protective orders under CLRA s. 37, including ordering delivery of the person's passport, the child's passport and other travel documents.

What to do next

Ontario's guidance says to call the police right away if you think your child is in danger or at risk of being taken out of the country. For anything less immediate, take calm, practical steps.

• Write down when and where the child was taken or kept, and what the other parent said.
• Keep messages, emails and texts about the arrangement.
• Note any safety concerns for you or the child, and any past family or court proceedings.
• Gather the child's passport details and any agreement or order that exists.
• Speak with a family lawyer soon about urgent or without-notice options in your region.

If you are the parent who left because of danger, tell a lawyer that early, because the facts about safety can matter a great deal.

Frequently asked questions