Parental Child Abduction

Parental Child Abduction

DATE: May 20, 2008

SUBJECT: CRITERIA IN RESPECT OF SECTIONS 282(1) AND 283(1) OF THE CRIMINAL CODE

BACKGROUND:

Parental child abduction occurs when one parent, without either legal authority or the permission of the parent who has lawful custody, takes a child from this other parent. In both cases, although children may not be in extreme physical danger, their lives are greatly disrupted. Children have the right to security, stability and continuity in their lives. And when one parent unilaterally takes exclusive possession of a child, the child is deprived of these rights. The purposes of ss. 282(1) (parental child abduction where there is a custody order in effect) and 283(1) (parental child abduction where there is not a custody order in effect) of the Criminal Code are to prevent such outcomes, to encourage parents to settle child custody and access issues in court, and to abide by any court orders that are made.

In 1990, Federal/Provincial/Territorial Ministers responsible for Justice unanimously adopted model-charging guidelines to assist in the uniform application of the Criminal Code provisions and in particular to advise when and how charges may be laid.

To provide greater understanding and consistency of approach to this problem a subcommittee of the Co-ordinating Committee of Senior Officials and the Federal/Provincial/Territorial Family Law Committee prepared amended charging guidelines for use by police and Crown prosecutors. These guidelines were adopted by Ministers responsible for Justice at a meeting in Regina in October of 1998. The guidelines remain advisory only, since the ultimate decision on charging rests with investigative agencies and the Crown prosecutors involved.

INFORMING PRINCIPLES:

  1. Not all cases of parental child abduction will be considered criminal in nature. Whether or not a charge can be laid depends on several factors, including evidence of criminal intent, the burden of proof beyond a reasonable doubt, and the availability of statutory defences of consent and danger of imminent harm.
  2. Civil enforcement is a route that can be used instead of the criminal response when criminal charges are not appropriate. The federal Family Orders and Agreements Enforcement Assistance Act establishes procedures to ascertain the addresses of parents and children residing in Canada from federal information banks to facilitate the enforcement of custody orders.
  3. In endeavouring to interpret these sections, the underlying purpose of the legislation as stated by Dr. MacGuigan, then Federal Minister of Justice, should be borne in mind:
… the new law puts the child first and recognizes that the children have rights; the right to security, stability and continuity in their lives.
  1. The Criminal Code provisions send a clear message that unilateral actions by one parent that affect lawful care and control rights of the other parent respecting the child will not be tolerated. Such actions have a detrimental effect on the well-being of children involved. Parents are to be discouraged from using “self-help” remedies to deal with custody disputes. Parents are to be encouraged to comply with existing orders or agreements or to resolve disputes with the other parent, through civil processes.
  2. While the important criminal purposes of these sections governs police and Crown practice in these cases, it may also be relevant to suggest that parties consider, with their counsel, whether civil law remedies are also appropriate to their case. Even if civil law remedies are available, a separate determination of whether criminal charges should be laid is required.
  3. The Hague Convention on the Civil Aspects of International Child Abduction is the main international treaty that can assist parents whose children have been abducted to another country. Articles 3 and 5 of the Hague Convention on the Civil Aspects of International Child Abduction, which has been adopted by all Canadian jurisdictions, may be of assistance in interpreting ss. 282 and 283 in custody situations.

Article 3

The removal or the retention of a child is to be considered wrongful where

  1. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  2. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Article 5

For the purposes of this Convention

  1. “rights of custody” shall include rights relating to the care of the child and, in particular, the right to determine the child’s place of residence; …

WHERE CHARGES WARRANTED:

Given the significance of charging a parent with abducting his or her child, it is important that Crown prosecutors consult with senior colleagues before proceeding with a prosecution under the governing provisions. In fact, authorization of the Attorney General is a legislated prerequisite to any prosecution under s. 283(1).

Section 282 of the Criminal Code of Canada

Charges under s. 282(1) of the Criminal Code may be warranted where:

  1. A child under the age of 14 is involved.
  2. There is a court order establishing “custody rights” granted in Canada which is not being complied with.

Note:

  1. Persons can have different types of “custody rights” under custody orders. Orders can contain different types of terminology. For example, an order may grant a person sole custody, joint custody, periods of care and control (with custody remaining joint between the parents by virtue of provincial legislation) or guardianship. These are all types of “custody rights”.
  2. It is not necessary to register an order of custody granted in one province before criminal charges can be laid in another. The investigating agency should, however, consider making inquiries to ascertain whether the custody order relied upon is the most current custody order and is still in effect. The agency should obtain a copy of the order. This can be done through direct inquiries of the complainant, a call to the registrar/court staff where the order was issued, or otherwise.
  3. The alleged abductor:
    1. is a parent, guardian (as defined in s. 280(2)) or other person having the lawful right to care for or charge of a child;
    2. takes, entices away, conceals, detains, receives or harbours the child;
    3. is in contravention of the custody provisions of a Canadian custody order;[1] and
    4. intended to deprive the parent, guardian or person having lawful care or charge of the child of possession of the child contrary to a court order.
  1. The parent, guardian or other person whom the alleged abductor intended to deprive of possession of the child did not consent to the taking, etc., of the child by the alleged abductor (see s. 284). The alleged abductor’s consent is not sufficient to avoid a charge.
  2. There is no reason to believe that the alleged abductor did not know of the existence or terms of the custody order.

Section 283 of the Criminal Code of Canada

Charges under s. 283(1) of the Criminal Code may be warranted where:

  1. A child under 14 is involved.
  2. Custody Rights
    1. A Canadian custody order exists but the alleged abductor did not believe or know there was a valid order (see s. 282(2)).
    2. No Canadian custody order exists, but parental rights of custody under statute or common law exist (e.g., provincial family law legislation may indicate that parents have joint custody of their children unless the court orders otherwise.).
    3. No Canadian custody order exists, but custody rights under a separation agreement or a foreign order have been violated.
    4. There has been a permanent or indefinite denial of a right or access pursuant to an agreement that provides the access parent with a significant degree of care and control over a child with or without a provision permitting the child’s removal from the jurisdiction.
    5. There has been a permanent or indefinite denial of right of access pursuant to a court order[2], which provides the access parent with a significant degree of care and control over a child.[3]
      Where the rights of the access parent are not so extensive, resort should be made to civil remedies, which exist in the jurisdiction.
  3. The alleged abductor:
    1. is a parent, guardian (as defined in s. 280(2)) or other person having the lawful right to care for or charge of a child;
    2. takes, entices away, conceals, detains, receives or harbours the child; and
    3. intended to deprive the parent, guardian or person having lawful care or charge of the child of possession of the child.[4]
  4. The parent, guardian or other person whom the alleged abductor intended to deprive of possession of the child did not consent to the taking, etc., of the child by the alleged abductor (see s. 284). The alleged abductor’s consent is not sufficient to avoid a charge.
  5. Consent of the Attorney General or counsel instructed by him or her for that purpose is obtained. All Chief Crown Prosecutors and Assistant Chief Crown Prosecutors are counsel instructed by the Attorney General for the purposes of consenting to the commencement of proceedings. The fact that consent has been given may be added to Informations under s. 283(1), as follows:
The Consent of (Crown Attorney) has been obtained to lay this charge, (Crown Attorney) being counsel for the Attorney General instructed for that purpose.)

THE PUBLIC INTEREST

On charge assessment for alleged offences under s. 282(1) or s. 283(1), factors to be considered in deciding whether a prosecution is in the public interest are described in the guideline The Decision to Prosecute, but also include the following factors that are specific to this type of a prosecution.

Factors or Circumstances in Favour of Prosecution
  1. A child has been taken from a situation where there has been some degree of permanency, contrary to a settled (written or otherwise) or ongoing arrangement.
  2. Custody proceedings have been initiated or are anticipated, and the alleged abductor, in taking the child, is frustrating proceedings. This may include, but is not restricted to, situations in which the court has stated that, pending a determination, the child is not to be removed from the jurisdiction.
  3. There are reasonable grounds to believe that one parent has a foreign custody order and the alleged abductor is in breach of such order.[5]
  4. The child has been taken by the alleged abductor contrary to existing custody rights, it appears that he or she may cause harm to the child, and a criminal charge is necessary to ensure the protection of the child.
  5. The alleged abductor takes a child with intent to deprive the other parent of possession of the child, and in contravention of an existing Canadian court order or joint custody law.
  6. The alleged abductor takes the child surreptitiously and disappears with the child.
  7. The alleged abductor takes, etc., the child where there is a provision in an order or agreement restricting the ability of a parent to remove the child from the jurisdiction.
  8. The alleged abductor has taken the child and in so doing has permanently or indefinitely frustrated the other parent’s rights, where such rights by their nature involve a significant degree of care and control over the child.
  9. It appears that the offending party has repeatedly breached s. 282(1) or 283(1).
  10. There are reasonable grounds to believe that the offending party is incapable of looking after the child (e.g., due to substance abuse or diminished capacity).
Factors of Circumstances Against Prosecution
  1. There is evidence that the alleged abductor is not aware of the existence of the terms of a custody order prior to the laying of the charge. However, it should be noted that s. 282(2) allows for a conviction under s. 283(1) where it is found at trial that the accused did not have knowledge of the custody order at the time of the offence. It appears that s. 283(1) is treated as an included offence and Attorney General consent is implied where the Crown and court rely on s. 282(2).
  2. The offending parent is merely late in returning a child from an access visit.
  3. The order is not clear on its face as to the terms of custody allegedly breached and the available evidence does not clarify the nature of the breach.
  4. The guardianship, parenthood, possession or charge of the child may be subject to applicable legislation.
  5. A less onerous civil remedy is available and would be more appropriate in the circumstances.
  6. Although technically possible, a charge would not likely be laid in circumstances in which one party moves out of the home with the child while in the course of separating from the other party, if it appears that the parties are attempting to resolve custody either through the courts or by agreement.
  7. Where there are competing interim or final orders issued by different courts dealing with the custody of a child, which are valid on their face, there may not be an evidential basis to proceed with a prosecution.

DEFENCES UNDER SECTIONS 282(1) AND 283(1):

  1. It is not a defence to any charge under ss. 280-283 that the young person consented to or suggested any conduct of the accused (s. 286).
  2. It is a defence if the alleged abductor establishes that the taking, etc., of the child was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of the child.
  3. It is a defence:
    1. if the child was taken, etc., to protect the child from danger of imminent harm, or
    2. if the alleged abductor was fleeing from imminent harm and taking the child as well. For example, protecting a child from child abuse would provide a defence; as would an escape from a situation of spousal assault and the removal of the child at the same time (see s. 285).

OTHER ISSUES AND CONSIDERATIONS:

Foreign Custody Orders

In addition, Crowns dealing with ss. 282 and 283 of the Criminal Code and a possible foreign custody order should contact the Central Authority for the Hague Convention on the Civil Aspects of International Child Abduction in their jurisdiction. There may be civil proceedings for the return of the child underway or available under the Hague Convention on the Civil Aspects of International Child Abduction and international cooperation may be facilitated by understanding the relationship between civil and criminal actions.

Extradition

Extradition of a parent may be possible from some countries, but an extradition order will not in itself result in the return of the child. Therefore, any consideration of extradition proceedings must involve an analysis of the public interest factors in prosecuting the parent and the effect on the welfare of the child. See the guideline respecting Extradition and Rendition.


[1 ] Note that there is a distinction between custody and access provision time.
[2 ] Custody and access rights may be found in various court orders including those that precede or supplement custody and access orders such as those dealing with non-removal.
[3 ] Note that various factors may indicate “significant care and control” exists. One factor may be a court order with a non-removal clause.
[4 ] The non-abducting parent does not need to be in or have been in physical control over the child at the time of the alleged abduction. The notion of possession includes actual possession or a right to possession. This refers to the right of a parent to exercise control over a child: R. v. Dawson (1996) 111 CCC (3d) 1 (SCC).
[5 ] Crown prosecutors may wish to consult with a Central Authority (Northern Alberta – Team Leader, Civil Law Branch – Family Law, Alberta Justice – (780) 422-3715; Southern Alberta – Section Head, Civil Law Branch – Family Law, Alberta Justice – (403) 297-3360) for purposes of the Hague Convention on the Civil Aspects of International Child Abduction to ascertain the status of parallel civil proceedings.