Sections 281 through 286 of the Criminal Code of Canada, deal with the offence of kidnapping one’s own child. It is an offence for a parent to take or keep a child under who is fourteen years of age when a custody order gives custody to the other parent. It is also an offence to take a child under fourteen years of age away from the parent with whom the child lives even if no custody order exists. If the Crown Prosecutor proceeds by way of summaryconviction, a parent who is guilty of one of the above offences is liable to a maximum penalty of $500 or six months imprisonment or both. If the Crown proceeds by way of indictment, a parent who is guilty of one of the above offences will be liable to a maximum penalty of ten years imprisonment.
A parent is also guilty of an offence if she fails to return the child following the exercise of visiting rights. These laws are intended to protect the child’s “right to security, stability, and continuity in her life.”
It is a defence to the charge if you have taken your child in order to protect the child from imminent danger, but you must prove that you had reason to believe that the child was in danger. A child under fourteen years of age cannot consent to being abducted.
If your spouse kidnaps your child, you should call the police who have the power to lay charges, file a missing person’s report and/or issue a warrant for the arrest of the abducting parent. If your child has been taken out of the country, the situation is much more complex and you will probably require the services of a lawyer.
If your spouse kidnaps your child but you do not have an order for custody, the permission of the Attorney General’s Department is necessary before a charge can be laid. This may delay the search for your spouse and the missing child so it is important that you obtain formal custody of your children when you and your spouse separate. You may immediately apply to the court for an ex-parte (without notice to the other party) custody order even though the child may no longer be within the jurisdiction of the court if the child has had a substantial connection to the jurisdiction of the court.
Formal custody can be obtained through a court order or written agreement with your spouse. A verbal custody agreement with your spouse may be very difficult to prove if a dispute arises, so it is better if the custody arrangement is in writing. If you are unmarried but live with the child’s father, the two of you share custody while you live together. However, unless there is an agreement or court order to the contrary, or the father lived with the mother for one year before the birth of the child, the unmarried mother is the sole guardian of the child upon separation. (See section on Custody, Access and Guardianship).
Hague Convention on the Civil Aspects of International Child Abduction
An international treaty called the Hague Convention on the Civil Aspects of International Child Abduction was established to set out a system of administrative and legal procedures to discourage parental abductions and to try to ensure the prompt return of children removed by one parent from their home country. Canada was one of the first countries to sign the Convention and Alberta has since embodied the Convention in the International Child Abduction Act, which was, proclaimed in February 1987.
Under the International Child Abduction Act, the province has established a Central Authority whose duties include locating internationally abducted children, arranging the voluntary return of children, providing legal representation, helping to allow access and expediting the child’s return travel arrangements. The Central Authority operates through law enforcement agencies, child protection agencies, locating services, and International Social Services (ISS).
Other Services Available
Other agencies are also available to assist a parent whose child has been abducted. ISS is an international, non-profit, nongovernmental organization. It works as a liaison between various social service agencies and a world-wide network of branch offices and correspondents coordinated through a Secretariat in Geneva. ISS tries to clarify the legal issues surrounding the disputed child, to relieve the emotional anxiety of the deprived parent and to maintain communication between the parties. ISS Canada accepts parent referrals from both public and private social service agencies, Child Find, women’s emergency shelters and lawyers.
ISS may be contacted in Ottawa at 613-236-6161. Child Find, an international agency with offices throughout Canada and the United States, acts as a liaison between the police, lawyers, parents, and government agencies such as External Affairs and Social Services. Child Find Alberta tries to make its services free to parents and children in Alberta. If you are interested in seeking their services or providing information with respect to a missing child, you can contact Child Find Alberta in Calgary at 403-270-3463.