Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to getting a child custody order in Ontario, you should seek professional assistance (e.g. make a post on Dynamic Lawyers). We have Toronto, Ottawa, Brampton, Hamilton, and other Ontario family law lawyers registered on Dynamic Lawyers who can offer information, advice, and assistance with respect to helping you get child custody.
It’s a tough situation: you want to split up from your common law or married spouse and take your child with you. But you don’t have the permission of your spouse. Now they’re saying that they’ll call the police and report an abduction if you suddenly leave with your child. Is that true? What are your options?
Starting Position: Parents have equal rights
Well, you need to start off by looking at the Children’s Law Reform Act. Section 20(1) says:
Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.
So if a spouse is planning to just get up and leave with their child, they will be infringing on the other spouse’s equal entitlement to custody. Here, “custody” means having legal care and control of the child. The spouse that take their child could face family law and criminal sanctions (e.g. charged with abduction). There are defences which they could raise, however, which are outlined in the Criminal Code provisions repeated below.
Court Order or Separation Agreement
So how do you get around the “equal rights” starting position? Well, s. 20(7) of that Act says:
Any entitlement to custody or access or incidents of custody under this section is subject to alteration by an order of the court or by separation agreement.
So, if there is a valid separation agreement or court order dealing with custody and access, then a spouse would be entitled to take their child as per the terms of that agreement or order.
Separation Agreement
The terms of a valid separation agreement can deal with custody and access issues of children. For example, a term could say that the husband will have custody of the children and the wife will have access to include overnight, weekend, and extended holiday visits. Alternatively, a term could say that the husband and wife will have joint custody of the children (e.g. the children will reside with the husband but will be in the custody of the wife as follows….). The terms of your separation agreement to satisfy both parties’ interests in light of the best interests of the children.
Court Order
If you don’t have or can’t get a separation agreement with your spouse that addresses custody and access issues, you will need to apply to the court (using Form 8). The person making the application is called the “Applicant” and your spouse will be the “Respondent”. As per the Superior Court of Justice – Family Court – Fees Regulation, there is no filing fee on an application seeking custody, access, or support made under the Children’s Law Reform Act. There also doesn’t appear to be any fees payable if the proceeding is in the Ontario Court of Justice. For more information about family law procedures in the Ontario Court of Justice, check out this Guide by the Ministry of the Attorney General. For more information about family law procedures in the Superior Court of Justice, check out this Guide by the Ministry of the Attorney General.
Criminal Sanctions
Without a separation agreement or court order to the contrary, a spouse can be charged with abduction by simply taking their children and leaving the other spouse. Here are the relevant sections of the Criminal Code dealing with the offence of abduction (very serious stuff) and the possible defences. Remember: if you are contemplating getting a separation agreement or applying to the court for custody and access, you can make a post on Dynamic Lawyers (100% free and anonymous) where family law lawyers can advise and represent you:
Abduction
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) an offence punishable on summary conviction.
Consent required
(2) No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.
Defence
284. 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.
Defence
285. 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.
No defence
286. 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.
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