A Quick overview of Child Custody, Child Abduction
and Getting the Child Returned to the Jurisdiction
When going through a separation or divorce, both parents must mutually decide, through the assistance of a lawyer or mediator, the custodial arrangements for their children. The term custody entails the right to make decisions about the child’s upbringing, such as but not limited to: education, religion and healthcare. There are two types of custody, joint and sole.
Joint custody enables both parents to make major decisions about their child’s life together. This often requires an extensive amount of co-operation. Sole custody enables only one parent to make the major decisions for the child. While one parent has sole custody of their child, the other parent is permitted to have access, during which they are able to spend time with the child.
Parental Child Abduction
Canadian statistics reveal that parental child abduction is more likely to occur than a stranger child abduction. Parental child abduction occurs when a parent takes the child away from the parent who has been granted legal custody, without consent. This abduction may occur domestically or internationally.
Parental child abduction may not always be of physical harm to the child, but it may greatly affect their quality of life. This is where the importance of the custodial arrangement comes into play. Section 282 and 283(1) of the Criminal Code of Canada are set in place to urge parents to arrange child custody and access problems in court and abide by the laws in place. As such, parents are encouraged to seek civil remedies to their custody matters, rather than resorting to self-help remedies.
Where criminal charges are not applicable to a case, civil enforcement is considered. Two pieces of regulation that are referred to on a case to case basis are the Family Orders and Agreements Enforcement Assistance Act and the Hague Convention on the Civil Aspects of International Child Abduction.
The Family Orders and Agreements Enforcement Assistance Act lays out the processes regarding matters between parents and children, such as custody orders.
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that may help parents whose children have been abducted outside of Canadian borders.
The first two steps that a parent must take following the realization of their child’s abduction are: first, contacting the police enforcement and then reaching out to their family lawyer in order to assess how the court may be of assistance. There are two circumstances that may apply in such a situation, either the parent already has a custody order, or they do not.
In the case that they do not, the parent must find the closest family court to the child’s residence and begin an application for custody and access, obliging the other parent to return with the child.
If the process of divorce has already begun between both individuals, the parent must seek an order under the Divorce Act. If the process of divorce has not begun, then the parent may seek an order under the Ontario Children’s Law Reform Act. The parent may still have to file an application with the family court in the province or territory the child has been taken to, in order to involve the local authorities.
In the case that a parent believes their child has been abducted outside of the Canadian borders, they must contact National Missing Children Services of the RCMP and the Consular Affairs Bureau. The Hague Convention, as mentioned above, maybe of assistance if the country in which the child has been taken to is also a participant of the convention.
For further guidance on child support or more information on parental child abduction, please do not hesitate to contact our law firm at 905-366-0202, or visit our website here.