Parental Abduction Charges in Ontario: When Taking Your Child Is a Crime

Most separated parents argue about schedules without anyone calling the police. But sometimes a parent keeps a child after a visit, moves without telling the other parent, or takes a child out of the country. Then the question becomes whether the law treats it as more than a family dispute.

This article explains in plain language how the Criminal Code deals with parental abduction, what the defence is, and what both sides can do. It is general information. Because criminal and family proceedings can overlap, speak with a lawyer about your own facts.

Abduction where there is a custody or parenting order

Under section 282(1) of the Criminal Code, a parent, guardian or person with lawful care of a child under 14 commits abduction if they take, entice away, conceal, detain, receive or harbour the child in contravention of a custody order or parenting order made by a court anywhere in Canada, with intent to deprive another parent or guardian of possession.

Several parts of that rule matter. The child must be under 14. The order must be a court order, and it can come from any court in Canada. And there must be an intent to deprive the other parent or guardian of possession. The offence is hybrid, so it can be prosecuted as an indictable offence, with a maximum of 10 years, or by summary conviction.

If a charge under section 282(1) fails only because the accused did not believe there was a valid order, but the evidence proves an offence under section 283, the accused may still be convicted under section 283. In other words, a mistaken belief about the order does not necessarily end the matter.

Abduction where there is no order

Many parents assume that without a court order, neither can be accused of anything. That is not safe to assume. Section 283(1) says abduction of a child under 14 can be an offence whether or not there is an order referred to in section 282(1). It is also hybrid, with a maximum of 10 years on indictment.

There is a built-in check. No proceedings under section 283 may start without the consent of the Attorney General or counsel instructed by them. That means a prosecution of this kind needs a further step beyond a police report.

Defence: protecting a child from imminent harm

Section 285 gives a defence to the abduction offences in sections 280 to 283. The court must be satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring was necessary to protect the young person from danger of imminent harm, or that the accused was escaping from danger of imminent harm.

This is not a general defence for parents who feel the other parent is unsuitable. It is tied to imminent harm, so evidence of what happened and when is central. A parent fleeing violence should document the danger and act promptly in family court, so that the situation is placed before a judge instead of left unexplained. Divorce Act definitions of family violence, which include coercive and controlling behaviour and harassment, show how broadly family courts look at safety, although the Criminal Code defence has its own wording.

If your child has been taken

Ontario's government says that if a child has been abducted by a family member, you should call 911 or local police. You can also apply to family court for the child's return, even if the child was taken out of Ontario. To enforce decision-making responsibility and parenting time, you need a parenting order or agreement in place.

Which law applies depends on your relationship. If no divorce proceeding has started, the Children's Law Reform Act applies and a parent would need a parenting order under it. If a divorce has started or a Divorce Act parenting order exists, the Divorce Act applies and the order may be enforceable in other provinces and territories.

If the child is taken to a Hague Convention country, Ontario's Central Authority at the Ministry of the Attorney General handles applications, at 416-240-2411 or Hague.Abduction@ontario.ca. For consular emergency help for children taken abroad, contact Global Affairs Canada at 1-800-387-3124.

If you fear a passport application without your consent, Passport Canada describes adding a child's name to a safety list. Court orders and agreements with custody, decision-making, parenting time, mobility or passport clauses must be submitted with an application.

Reducing the risk before it happens

Informal arrangements are the common starting point of abduction disputes. Ontario notes that an informal parenting plan can be hard to enforce, and that a plan can instead be part of a separation agreement or a court order. Legal decision-making responsibility exists only through a signed separation agreement or court order.

• Put your parenting schedule in writing, ideally in an agreement or order.
• If moving or travel is a concern, ask a lawyer whether your agreement or order should address it.
• Do not keep a child past an agreed return without legal advice, even if you are worried.
• If safety is the reason, a motion can be brought without notice where there is an immediate danger to someone's health or safety and delay would probably have serious consequences.

What to do next

If you are the parent who is worried, gather your order or agreement, recent messages about the child's location, and any travel details. If you are the parent accused, avoid contacting the other parent in ways that could escalate matters, and speak to a lawyer promptly, since criminal exposure and family court issues can affect each other.

• Call 911 or local police if a child has been taken.
• Collect your parenting order or agreement.
• Ask a lawyer whether to apply for the child's return or an urgent order.
• If travel abroad is involved, contact the Central Authority or Global Affairs Canada.

Frequently asked questions