Anyone who has been through a contentious divorce knows the negative emotions can linger long after the divorce is final. When partners disagree about issues related to their children, the divorce can be even more hostile.
In some cases, a parent may be tempted to withhold the child from the other parent. In the most extreme circumstances, a parent leaves the province or country with the child without the other parent’s knowledge or permission. The parent who flees with the child may believe he or she is safeguarding the child or keeping the child safe, but this is nevertheless a very serious crime. Specifically, the Criminal Code prohibits parental child abduction, which is punishable by up to 10 years in prison.
What Is Parental Child Abduction?
When a parent removes a child from the province or the country without the other parent’s knowledge or permission, he or she can be charged with child abduction. Specifically, a parent or guardian who removes a child from the other parent or guardian in contravention of a custody order is subject to an indictable offence or offence punishable on summary conviction, depending on the circumstances of the case.
Although it is not a valid defence to claim the child consented to the abduction, the court may consider it a valid defence if the abducting parent can show he or she abducted the child to prevent harm to the child.
When determining whether a parent had legal authority to remove a child, it is important to consider the parents’ custody arrangements, as well as each parent’s access rights to the child. For example, the parents may share custody through a joint custody arrangement, in which case both parents have rights to make decisions about the child. In other cases, one parent has sole custody, while the non-custodial parent has access rights to the child.
In many cases, a parent removes a child to the United States, hoping Canadian authorities will not be able to intervene. Because both Canada and the U.S. are parties to the Hague Convention on the Civil Aspects of International Child Abduction, both countries cooperate with each other to return children to their home countries in cases of child abduction.
Ottawa, Ontario Criminal Defence
Criminal defence lawyers Bruce Engel and Elena Davies have represented individuals and businesses charged with hundreds of different offences throughout Canada for more than two decades. From the start of a criminal investigation to the close of a trial, we will take a balanced and forceful approach to your defence. We have the experience and know-how to effectively navigate the constantly changing justice system in Canada.