Overview of Canadian Family Justice
APPENDIX C - MODEL PARENTAL CHILD ABDUCTION CHARGING GUIDELINES - OCTOBER/98
In January 1983, specific provisions in the Criminal Code of Canada came into effect making parental child abduction a criminal offence. Section 282 of the Criminal Code prohibits parental child abductions in situations where there is a custody order made by a Canadian court. Section 283 applies to situations where parents continue to have joint custody of their child by operation of law, where there is a written agreement, where there is a foreign custody order, or where the abducting parent did not believe or know there was a valid custody order.
In October 1998, Federal/Provincial/Territorial Ministers responsible for Justice adopted new Model Parental Child Abduction Charging Guidelines prepared by the then Federal/Provincial/Territorial Family Law Committee, in consultation with the Coordinating Committee of Senior Officials—Criminal Justice. The Model Charging Guidelines were intended to improve the handling of parental child abduction cases and replaced earlier 1990 Guidelines. The Model Charging Guidelines are advisory and provide Crown Attorneys and law enforcement agencies with guidance as to circumstances where parental child abduction charges may or may not be appropriate. The Criminal Code provisions concerning parental child abduction and the Model Parental Child Abduction Charging Guidelines are set out below.
CRIMINAL CODE PROVISIONS
ABDUCTION OF PERSON UNDER SIXTEEN
ABDUCTION IN CONTRAVENTION OF CUSTODY ORDER
Every one who, being the parent, guardian or person having the lawful care of charge of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbors that person, in contravention of the custody provisions of a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person is guilty of
- (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- (b) an offence punishable on summary conviction.
Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under section 283, the accused may be convicted of an offence under section 283. R.S., 1985, c. C-46, s. 282; 1993, c. 45, s. 4.
Every one who, being the parent, guardian or person having the lawful care or charge, of a person under the age of fourteen years, takes, entices away, conceals, detains, receives or harbors that person, whether or not there is a custody order in relation to that person made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of
- (a) an indicate offence and is liable to imprisonment for a term not exceeding ten years; or
- (b) an offence punishable on summary conviction
No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose. R.S., 1985, c. C-46, s. 283; 1993, c. 45, s. 5.
No one shall be found guilty of an offence under sections 281 to 283 if he establishes that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was done with the consent of the parent, guardian or other person having the lawful possession, care or charge of that young person. 1980-81-82-83, c.125, s.20.
No one shall be found guilty of an offence under sections 280 to 283 if the court is satisfied that the taking, enticing away, concealing, detaining, receiving or harbouring of any young person was necessary to protect the young person from danger of imminent harm or if the person charged with the offence was escaping from danger of imminent harm. R.S., 1985, c. C-46, s. 285; 1993, c. 45, s. 6.
In proceedings in respect of an offence under sections 280 to 283, it is not a defence to any charge that a young person consented to or suggested any conduct of the accused. 1980 81 82 83, c.15, s.20.
MODEL PARENTAL CHILD ABDUCTION
The intent of these guidelines is to assist in the uniform application of sections 282 and 283 of the Criminal Code. They are directed to police and Crown Attorneys to advise when and how charges may be laid.
These guidelines are advisory only. The ultimate decision as to whether or not to lay charges in a particular case rests with the appropriate authorities having regard to the particular circumstances of that case.
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.
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.
While the important criminal purpose 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.
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 sections 282 and 283 in custody situations.
The removal or the retention of a child is to be considered wrongful where
- (a) 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
- (b) at the time of removal of retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particularby operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
For the purpose of this Convention
"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; ...
Charges under section 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:(a) 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
- (b) It is not necessary to register an order of custody granted from one province before criminal charges can be laid in another. The investigative agency should, however, consider making inquiries to ascertain whether the custody order is the most current custody order, that the order is still in effect and may request a copy of the order. This can be done through direct inquiries of the complainant, a call to the registrar/court staff from where the order was issued or otherwise.
- (a) The alleged abductor is a parent, guardian [defined in s.280(2)] or other person having the lawful right to care for or charge of a child.
- (b) (The alleged abductor takes, entices away, conceals, detains, receives or harbours the child.
- (c) The alleged abductor is in contravention of the custody provisions of a Canadian custody order [note there is a distinction between custody and access provision terms]; and
- (a) The taking, etc. was done by the alleged abductor with the intent to deprive a parent, guardian or person having lawful care or charge of the child of possession of the child contrary to a court order.
- (b) A parent, guardian or other person having the lawful care or charge of the child did not consent to the taking, etc. of the child by the alleged abductor. [Note: defence in s.284. The alleged abductor’s consent is not sufficient to avoid a charge.]
- (c) There is no reason to believe that the alleged abductor did not know of the existence of terms of the custody order.
Examples where under Section 282(1) charges may not be appropriate:
Charges under section 283(1) of the Criminal Codemay be warranted where:
- 1) A child under 14 is involved.
- (a) A Canadian custody order exists but the alleged abductor did not believe or know there was a valid order [See section 282(2)].
- (b) No Canadian custody order exists, but parental rights of custody under statute or common law exist [for example, provincial family law legislation may indicate that parents have joint custody of their children unless the court orders otherwise].
- (c) No Canadian custody order exits, but custody rights under a separation agreement or a foreign order have been violated.
- (i) There has been a permanent or indefinite denial of a right of access pursuant to an agreement which 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.
- (ii) There has been a permanent or indefinite denial of a right of access pursuant to a court order which provides the access parent with a significant degree of care and control over a child. [Note: Various factors may indicate
"significant care and control"exists; one factor may be a court order with a non-removal clause.]
* For further clarification on what
"significant care and control"means, please consult the Crown Attorney. Where the rights of the access parent are not so extensive, resort should be made to civil remedies, which exist in the jurisdiction.
- (a) The alleged abductor is a parent, guardian [defined in s. 280(2)] or other person having the lawful right to care for, or lawful charge of, the child;
- (b) The alleged abductor does so with the intent to deprive the other parent, guardian or person of possession of that child; and
- (a) The taking, enticing, etc. was done by the alleged abductor with the intent to deprive a parent, guardian or person having care or charge of the child of the possession of the child. [Note: 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. See R. v. Dawson.]
- (b) A parent, guardian or other person having the lawful care or charge of the child did not consent to the taking, enticing or detention of the child by the alleged abductor. [Note: the alleged abductor’s own consent is not sufficient to avoid a charge.]
- 5) Consent of the Attorney General or counsel instructed by him/her for that purpose is obtained.
[Note: The fact that consent has been given may be added to informations under s.283. For example:
Examples of when charges may be authorized by the Attorney General are as follows:
PART III: EXAMPLES WHERE CHARGES MAY NOT BE APPROPRIATE:
For example, protecting a child from child abuse would be a defence, as would a parent escaping from a situation of spousal assault and moving the child at the same time. (See s.285).
PART IV: OTHER CONSIDERATIONS
Given the interplay between family law and criminal law remedies in these cases, jurisdictions which have not already done so, may want to consider, in line with the recommendations of the Federal/Provincial/Territorial Family Law Committee in its original report, ensuring that Crown counsel familiar with family law matters are available to consult with prosecutors and police where appropriate.
In addition, each jurisdiction should ensure the police, Crowns and others dealing with s.282 and s. 283 of the Criminal Code are provided with information on the role of, and how to 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. Police and Crown Attorneys should consult with the Central Authority in their province/territory as international co-operation may be facilitated by understanding the relationship between civil and criminal actions.
Elements of the Offence: s.282
- R. v. Van Herk (1984), 12 C.C.C. (3d) 359 (Alta. C.A.)
- R. v. Poweless (1988), 18 R.F.L. (3d) 433 (Ont. Prov. Ct.)
- R. v. Petropoulos (1990), 59 C.C.C. (3d) 393 (B.C. C.A.)
- R. v. Gustaw (1991), 65 C.C.C. (3d) 296 (N.W.T. S.C.)
Lack of belief in valid order
- R. v. Ilczyszn (1988), 45 C.C.C. (3d) 91 (Ont. C.A.)
- R. v. Hammerbeck (1991), 36 R.F.L. (3d) 229 (B.C.C.A.)
- consider also:
R. v. McDougall (1990), 62 C.C.C. (3d) 174 (Ont. C.A.)
- R. v. Chartrand (1994), 91 C.C.C. (3d) 396 (S.C.C.)
Elements of the Offence: s.283
- R. v. Cook (1984), 12 C.C.C. (3d) 471 (N.S. C.A.)
- R. v. Levesque (1984), 15 C.C.C. (3d) 413 (N.S. Co. Ct.)
- R. v. Dawson (1995), 100 C.C.C. (3d) 123 (N.S. C.A.) and (1997) III C.C.C. 1 (S.C.C.)
Defense of Imminent Harm
- R. v. Famuluk (1989), 69 Alta. L.R. (2d) 412 (Alta. Q.B.)
- R. v. Schellenberg (1990), Sask. R. 317 (Sask. C.A.)
- R. v. Adams (1993), 44 R.F.L. (3d) 109, 19 C.R. (4th) 277 (Ont. C.A.)
- Note: Defence available only if taking necessary and proportional to the imminent harm as honestly perceived by the accused.
R. v. Tremblay (1994), 61 Q.A.C. 163
Duty to Investigate Status of Order:
- R. v. McCoy (1984), 17 C.C.C. (3d) 114 (Ont. Prov. Ct.)
- Date modified: