If you move your child without the other parent’s consent, you may be charged criminally with abduction under the Criminal Code of Canada (“CCC”):
- If the other parent is the sole guardian, you do not have the authority to take the child. If the child is under 16 years old you may be guilty of an offence with a maximum jail sentence of 5 years (s. 280 CCC).
- If the child is under 14 years of age and you takes them against the terms of a custody order (such as a divorce or parenting order), for the purpose of taking the child away from the other parent, you may be guilty of an offence with a maximum jail sentence of 10 years (s. 282 CCC).
- If the child is under 14 years of age and you don’t have a custody order (such as divorce or parenting order) and you take them for the purpose of taking her away from the other parent, you may be guilty of an offence with a maximum jail sentence of 10 years (s. 283 CCC).
It is important to note that the reason why a parent moves the child away is important; except in the case where the other parent has no authority over the child at all, the abduction has to be for the purpose of taking the child away from the other parent and denying the other parent access. Also, simply moving away may not amount to abduction; you have to withhold the child from the other guardian. For example, if you move away, but the other parent still has access to the child according to a court order, this likely would not be considered abduction.
It does not matter if the child goes with you willingly; you may still be charged (s. 286 CCC). However, you may have a defense to the charge if you were taking the child to protect them or yourself from imminent harm (s. 285 CCC). You should look at other options first before simply taking the child.
If your child has been abducted you should first contact your local police. Give them a copy of your custody order and any information that will help them find your child. You can request that the police contact the National Missing Children operations of the RCMP. It is important to note that it is up to the police to decide if they will charge someone; it is not your choice. You may also want to contact the media or hire a private search agency.
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