Child Custody
Child custody refers to the legal rights and responsibilities of a parent or guardian in determining the care, upbringing and welfare of a child. It encompasses physical custody, which involves living with and caring for the child on a day-to-day basis, as well as legal custody, which pertains to decision making about matters that affect the child’s welfare (e.g. education, health care, religion etc.). In many cases, both parents can have joint physical and/or legal custody even if they are no longer together.
Abduction Laws in Ontario
Under Canadian criminal law, abduction or kidnapping of a child is a serious crime. In Ontario, there are three laws that pertain to the abduction of a child: the Criminal Code, the Child and Family Services Act and the Interjurisdictional Support Orders Act.
The Criminal Code prohibits any person from abducting a child under age 16 without lawful authority or excuse. If convicted, the offender may face up to 10 years imprisonment. The Child and Family Services Act prohibits anyone from taking a child out of Ontario for more than 48 hours without written consent from others with custody rights or an order from the court. If found guilty, an offender could be fined up to $50,000 and/or face up to two years in prison. Finally, the Interjurisdictional Support Orders Act makes it illegal for someone to harbour or conceal a child who has been taken outside of Ontario in order to avoid the enforcement of an existing support order. A conviction for this offence carries a maximum sentence of two years’ imprisonment or both jail time and a fine.
Types of Child Custody in Ontario
Physical custody
Physical custody is a legal term used to describe a parent’s right to have their child physically present in their home. In Ontario, parents can either share physical custody of the child or one parent may be granted sole physical custody. This means that the child would live solely with one parent and the other parent would typically have access rights.
When deciding who should have physical custody of a child, the court will consider many factors such as the best interest of the child, stability of home life, and fitness of both parents. The court also considers any history of family violence, abduction or abuse when making its decision about physical custody arrangements.
Legal custody
Legal custody is a term used to describe a parent’s right to make legal decisions on behalf of their child. In Ontario, parents can either share legal custody of the child or one parent may be granted sole legal custody. This means that only one parent has the authority to make substantial decisions regarding their child such as medical care, education, and religious upbringing.
When deciding who should have legal custody of a child, the court will consider many factors such as the best interest of the child, the mental and physical health of both parents and any history of family violence, abduction or abuse. The court also takes into account which parent has historically been more involved in making decisions on behalf of the child when rendering its decision about legal custody arrangements.
How to Obtain Custody of a Child in Ontario
Mediation
Mediation is a process of negotiation between two or more parties to reach an agreement without the need for litigation. This process helps the parties resolve their disputes through discussion and mutual understanding in a cooperative manner. The mediator, who is usually a neutral third party, assists the parties in finding common ground and reaching an agreement.
The mediation process takes place outside a courtroom and typically involves private discussions between the parties involved. The mediator will generally facilitate these discussions by providing advice, asking questions, and encouraging constructive conversations that help both sides better understand one another’s position. Ultimately, the goal of mediation is to come to an amicable resolution that works for all parties involved.
Court proceedings
Court proceedings are legal processes that take place in a courtroom, where two or more parties present their cases to a judge. The proceedings involve activities such as the presentation of evidence, cross-examination of witnesses, and argumentation. Depending on the case and jurisdiction, court proceedings can be lengthy and complex.
In order to successfully navigate court proceedings, it is important for parties to understand the relevant laws and procedures as well as their own rights and obligations related to the case. Parties should also seek independent legal counsel before attending court proceedings in order to ensure they are adequately prepared for what lies ahead.
What Is Considered an Abduction Under Ontario Law?
Under Ontario law, abduction is defined as a non-consensual and illegal confinement, detention, or removal of a person against their will. This includes taking a person out of the jurisdiction of Ontario without the free and voluntary consent of the person being taken.
The most common type of abduction is parental abduction, which occurs when one parent takes a child out of the jurisdiction without authorization from the other parent or guardians. In such cases, criminal charges can be laid if it is deemed necessary. Other types of abductions may also carry civil penalties depending on the circumstances.
Consequences for Abducting a Child Across Provincial Lines
Abducting a child across provincial lines is considered a serious offence and can have far-reaching legal and civil consequences. In addition to being charged with criminal offences in the jurisdiction where the abduction occurred, an abductor could also face serious legal repercussions from other jurisdictions. For example, if an individual abducts a child from Ontario into another province, they could be held accountable under a Hague Convention which requires them to return the child to their home jurisdiction or face extradition charges.
Additionally, there may be civil penalties associated with abduction such as financial liability for costs related to returning the child or damages sought by the victim in civil court. In extreme cases of parental abduction, individuals may also face felony charges.
Steps For Getting The Child Returned to the Jurisdiction
When it comes to getting a child returned from another jurisdiction, there are several steps that can be taken. Firstly, it is important to contact the local police in both jurisdictions. This will help them investigate the abduction and put out an Amber Alert to help locate the child as quickly as possible. Additionally, parents should also contact child protection services in both jurisdictions for assistance.
If necessary, a civil court hearing can then be scheduled to determine who has custody of the child. A criminal court hearing may also take place depending on the circumstances involved with the abduction. Finally, a lawyer or mediator can be consulted for further assistance with recovering the abducted child and obtaining legal recourse if necessary.
Initiating criminal proceedings against the abductor
In cases of cross-border abduction, criminal proceedings can be initiated against the abductor in both jurisdictions. Depending on the severity of the abduction, these proceedings may involve felony charges. Additionally, extradition charges may also be brought upon the abductor as part of an effort to bring them back to their home jurisdiction and face justice.
When launching criminal proceedings against an abductor, it is important to consult a lawyer for advice and guidance throughout the process. Furthermore, prosecutors in both jurisdictions should work together to ensure that the proper evidence is presented in court so as to ensure that justice is served.
Filing an application for custody under provincial law
When a child has been abducted and taken to another jurisdiction, it is important to file an application for custody under the laws of the abductor’s home province. This application should include all relevant information pertaining to the abduction and should be accompanied by any evidence that can help strengthen the case. It is also important to note that filing a separate international abduction application may be necessary in some cases.
In addition, parents who are seeking legal recourse for the abduction of their child will likely need to seek professional advice from a Toronto divorce lawyer or mediator, who can provide guidance throughout the process. Ultimately, these steps will help parents obtain custody of their child so they can bring them back home safely.
Conclusion
Cross-border abductions are a very serious matter and it is important for parents to take the necessary steps to ensure their child’s safe return. Initiating criminal proceedings against the abductor, as well as filing an application for custody under provincial law, are two key steps that can help reunite children with their families. Furthermore, seeking professional advice from lawyers or mediators may be necessary in order to ensure a successful resolution to the abduction.
If the divorce process has already begun, then a parent must seek an order under the Divorce Act. If it hasn’t, they may instead apply for one of the Ontario Children’s Law Reform Act.
For further guidance on child support or more information on parental child abduction, please do not hesitate to contact our Mississauga family law firm at 905-366-0202, or visit our website here.
