Wednesday, February 10, 2010
Parental Abduction in Canada
The Federal Prosecution Service
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Part VIPOLICY IN CERTAIN TYPES OF LITIGATION
Table of Contents
30 PARENTAL CHILD ABDUCTION
30.3 CHARGES UNDER S. 282 OF THE CRIMINAL CODE
30.4 CHARGES UNDER S. 283 OF THE CRIMINAL CODE
30.5 EXAMPLES OF WHEN CHARGES MAY BE AUTHORIZED
30.6 EXAMPLES OF WHEN CHARGES MAY NOT BE APPROPRIATE
30.8 OTHER CONSIDERATIONS
30 PARENTAL CHILD ABDUCTION
Parental child abduction occurs when one parent, without either legal authority or the permission of the other parent, takes a child from the parent who has lawful custody. There are both international and domestic aspects to the problem of child abduction. In both cases, although children may not be in extreme physical danger, their lives are greatly disrupted. They are deprived by the abduction parent of security, stability and continuity in their lives.
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.
In Canada, statistics collected by the RMCP Missing Children Registry indicate that 426 cases of victims of parental abductions were reported to police agencies in 1998, an increase of 8% from 1994.
The Criminal Code provides a criminal response to parental child abduction where there is a custody order in effect (s.282) and for situations where there is no custody order (s.283). In the latter case, consent of the Attorney General is required to prosecute the offence1.
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 (“CCSO”) and the Federal/Provincial/Territorial Family Law Committee (“FPT Committee”) prepared amended charging guidelines for use by police and Crown counsel. 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 Crown counsel. 2
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.
Civil enforcement is another route that can be used in addition to 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.
Adoption of the charging guidelines is one part of the Government of Canada's response to the problem. The Government has accepted that it can and must play a coordinating role in addressing parental child abduction within Canada3, as well as recognizing and taking steps to combat international child abductions4.
The following text has been taken from the 1998 CCSO/FPT Committee document with minor modifications to reflect the Federal Prosecution Service Deskbook format.
The intent of these guidelines is to assist in the uniform application of ss. 282 and 283 of the Criminal Code. They are directed to police and Crown counsel 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 the 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 and to resolve disputes with the other parent through civil processes.
While the important criminal purpose of these sections governs police and Crown practice, 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.
The discussion that follows is offered to assist police and Crowns in interpreting the custody concepts used in ss. 282 and 283.
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 of the Convention states in part:
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 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 of the Convention states in part:
For the purposes of this Convention
a. “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;...
30.3 Charges under s. 282 of the Criminal Code
Section 282 of the Criminal Code states:
282. (1) 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 harbours 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.(2) 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.
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;
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 are all types of “custody rights”;
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 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 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: the defence of consent is defined 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 or terms of the custody order.
30.4 Charges under s. 283 of the Criminal Code
Section 283 of the Criminal Code states:
283. (1) 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 harbours 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 indictable offence and is liable to imprisonment for a term not exceeding ten years; or
b. (b) an offence punishable on summary conviction.(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him
for that purpose.
Charges under s. 283(1) of the Criminal Code may 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 s. 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 exists, but custody rights under a separation agreement or a foreign order have been violated;
d. (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 order5 which provides the access parent with a “significant degree of care and control over a child” [Note: Various factors may indicate whether “significant care and control” exists; one factor may be a court order with a non-removal clause.]
Where the rights of the access parent are not so extensive, resort should be made to whatever civil remedies 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;
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, by stating, for example:
The Consent of Crown counsel has been obtained to lay this charge, Crown counsel being counsel for the Attorney General instructed for that purpose.]
30.5 Examples of When Charges may be Authorized
1. A child is taken by the alleged abductor from the usual sole or joint possession of another parent in circumstances where there is some degree of permanency, e.g. contrary to an arrangement which has existed between the parties for some time or contrary to the provisions of a written or oral agreement;
2. Custody proceedings have been initiated or are anticipated and the alleged abductor, in taking the child, is frustrating proceedings. This may include situations where the court has stated that the child is not to be removed from the jurisdiction pending a determination;
3. There are reasonable grounds to believe one parent has a foreign custody order and the alleged abductor is in breach of such order [Note: Counsel may want to consult with a Central Authority for purposes of the Hague Convention on the Civil Aspects of International Child Abduction in your province or territory to ascertain whether parallel civil proceedings are or may be initiated];
4. The alleged abductor has repeatedly acted in a manner which appears to have violated s. 283;
5. The child has been taken by the alleged abductor contrary to the existing parental rights to custody and it appears the alleged abductor may cause harm to the child and a criminal charge is necessary to ensure the protection of the child;
6. 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, but there is evidence that the abducting parent was not aware of the court order or law;
7. The alleged abductor takes the child surreptitiously and disappears with the child;
8. 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; or
9. The alleged abductor has taken the child and in so doing has permanently or indefinitely frustrated the access parent's rights, where such rights by their nature involve a significant degree of care and control over the child.
30.6 Examples of When Charges may not be Appropriate
Under s. 282(1):
1. 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; or
2. 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 is treated as an included offence and Attorney General consent is implied where the Crown and court rely on s. 282(2).
Under s. 283:
1. Although technically a charge could be laid in a situation where a parent, in the process of separation, moves out of the home with the child, it would be unlikely that a charge should be laid in these circumstances if it appears that the parties are attempting to resolve custody either through the courts or by agreement; or
2. 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, the police may need to consult with Crown counsel to determine whether there are reasonable grounds to proceed with an investigation and potential charge or whether further direction from the civil courts is required as to which order has priority or what remedy is appropriate.
Appropriate prosecutorial discretion should be exercised in these circumstances.
1. It is not a defence to any charge under s. 283 that the young person consented to or suggested any conduct of the accused [See 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:
a. if the child was taken, etc., to protect the child from danger of imminent harm; or
b. if the alleged abductor was fleeing from imminent harm and taking the child as well. For example, protecting a child from child abuse would be a defence as would a parent escaping from a situation of spousal assault and removing the child at the same time. [See s. 285]
30.8 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, Crown counsel 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 cooperation 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. Powless (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)
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), 111 C.C.C. 1 (S.C.C.)
Defence 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 the taking is necessary and proportional to the imminent harm as honestly perceived by the accused.
R. v. Tremblay (1994), 61 Q.A.C. 163 (C.A.)
Duty to Investigate Status of Order:
R. v. McCoy (1984), 17 C.C.C. (3d) 114 (Ont. Prov. Ct.)
1 See Part V, Chapter 16, “Decisions Made by, and on Behalf of, the Attorney General”.
2 In accordance with Part V, Chapter 15, “The Decision to Prosecute”.
3 Government of Canada's Response to the Report of the Special Joint Committee on Child Custody and Access, May 1999, pp. 14-15.
4 See generally, Government of Canada's Response to the Fourth Report of the Standing Committee on Foreign Affairs and International Trade, November, 1998.
5 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.