Child Abduction Within Canada

Abduction does not only contemplate situations in which a child is taken and relocated to a country outside of Canada as there are also instances of inter-provincial parental abduction. Fortunately, there exists explicit legislation, both federal and provincial, that regulates parental child abduction within Canada.

If your child has been wrongfully abducted by your former spouse/partner (or you fear that your child will be abducted) and taken to a province outside of Ontario then you should read the following article which will explain the available courses of action that you may take as well as the relevant pieces of legislation.

If you and your spouse are in the process of getting a divorce, or have already been granted one, then the applicable Act is the Divorce Act, R.S.C. 1985, c. 3. If you have obtained a custody order then pursuant to s. 20(2)-(3) it has legal effect throughout Canada and, once registered, is enforceable in any province. Therefore, if the order specifies that the child is not to be removed from the jurisdiction then enforcement of the order will typically entail the return of your child. You should always endeavor to contact the police who may provide assistance to you, as well as a family lawyer who can educate and advise you with regards to the relevant laws and the procedure to be followed.

If you do not have a custody order in place and rather have reached an informal agreement that is unenforceable by the court then you should apply for an order for custody pursuant to s. 16(1) of the Act.¹ More specifically, you should request that the court award you sole custody and include in the order a condition stipulating that the child is not to be removed from the jurisdiction without your express consent.² Once the order is granted by the court then it has legal effect throughout Canada and becomes enforceable in all provinces in which it is registered.³ Therefore the next step, to effect the return of your child, would be to register the order in the province to which he or she has been taken.

If, on the other hand, you are an access parent⁴ then s. 16(7) aims to protect your rights and curb the potential abduction of your child by the custodial parent. Section 16(7) states:

Order respecting change of residence - Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

The Children’s Law Reform Act, R.S.O. 1990, c. C.12 regulates situations where the parents of the children are not divorced nor are they contemplating a divorce. They may be either a common law or legally married couple wishing to separate only, or they may solely be the biological parents of the children. Regardless of their situation s. 20(1) of this Act grants them equal entitlement to custody of the child. Therefore, a unilateral decision, on the part of a parent, to abduct his or her child to another province or territory, contrary to an Ontario court order is not allowed.

A custodial parent with reasonable and probable grounds for believing that his or her child is being unlawfully withheld may bring an application to court under s. 36(1) for the apprehension and return of the child.⁵ If the court is satisfied of such, the custodial parent, a third party or the police may locate and return the child. The aforementioned requirements for apprehension by the police, i.e. reasonable and probable grounds, are strictly adhered to by the court.

Generally, if you have a mere suspicion that your child will be abducted or unlawfully retained then the courts will most likely resist making an Order to direct the police to locate and apprehend him or her. What is most often required is convincing and credible evidence such as plane tickets in the name of your spouse and your child of which you had no knowledge, or even the purchase of a residence in another province or country under the name of your spouse. The reason for this is due to the courts’ reluctance to implement police enforcement as the idea of frequent location and apprehension of children, in such a traumatizing manner, is unpalatable unless absolutely necessary.

To ensure the enforcement of your order you should file it with the court of the province to which your child has been abducted. If the provincial laws are similar to those of Ontario then they should contain provisions recognizing the extra-provincial order and allowing for the enforcement of it.⁶ Moreover, retaining a family lawyer to help you throughout the process of ensuring the safe and secure return of your child would be in your best interests. A family lawyer would serve the purpose of educating and advising you on the law as well as ensuring that all your documents/affairs are in order.

If no order has been made stipulating the custodial arrangements for your child then you should submit an application for sole custody with the court pursuant to s. 21 of the Act.⁷ Similarly to an order made under the Divorce Act you should request that conditions be imposed on the order such as that the child may not be removed from the jurisdiction in which he or she resides without your express consent.Then, simultaneous to this application, you should make an application under s. 36(1) for the court to order the return of your child.

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^1. For the purposes of this section the court(s) of competent jurisdiction are: the Superior Court of Justice and the unified Family Court.

^2. See: s. 16(6) this section grants the court the authority to make an order for “a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.”

^3. See: s. 20(2)-(3)

^4. Who, under s. 16(5) has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

^5. See: Subsection (2) allows the court to authorize and direct a police force, having jurisdiction in any area where it appears to the court that the child may be, to locate, apprehend and deliver the child to the person named in the order. Subsection (4) imposes a duty on police to do everything possible to locate and apprehend the child in question.

^6. See: s. 41 of the Children’s Law Reform Act

Enforcement of extra-provincial orders
41. (1) Upon application by any person in whose favour an order for the custody of or access to a child has been made by an extra-provincial tribunal, a court shall recognize the order unless the court is satisfied,

1. that the respondent was not given reasonable notice of the commencement of the proceeding in which the order was made;
2. that the respondent was not given an opportunity to be heard by the extra-provincial tribunal before the order was made;
3. that the law of the place in which the order was made did not require the extra-provincial tribunal to have regard for the best interests of the child;
4. that the order of the extra-provincial tribunal is contrary to public policy in Ontario; or
5. that, in accordance with section 22, the extra-provincial tribunal would not have jurisdiction if it were a court in Ontario.

Effect of recognition of order
(2) An order made by an extra-provincial tribunal that is recognized by a court shall be deemed to be an order of the court and enforceable as such.

Conflicting orders
(3) A court presented with conflicting orders made by extra-provincial tribunals for the custody of or access to a child that, but for the conflict, would be recognized and enforced by the court under subsection (1) shall recognize and enforce the order that appears to the court to be most in accord with the best interests of the child.

Further orders
(4) A court that has recognized an extra-provincial order may make such further orders under this Part as the court considers necessary to give effect to the order.

^7. For the purposes of this Act “court” entails the Superior Court of Justice, the unified Family Court and the Ontario Court of Justice

^8. See: s. 37(1) and (3).