Can you face charges for kidnapping your own child? It’s something that happens more often than one might expect. It’s most common when the parents do not live together, and one parent kidnaps the child when they do not have custody or against the will of the other parent.
For Abduction Section 283 of the Criminal Code provides:
- (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.
(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 for kidnapping your child, however, are less common. While kidnapping falls under the umbrella of abduction it requires the additional element of unlawful detention.
When Does Abduction by Parent Occur?
Abduction by a parent occurs when a parent takes their child against the will of the other parent. Unless the child is over 14 years old, having the consent of the child does not protect you from abduction charges. Instead, the issue is not removing the child against their own will, but against the will of the other parent. The police when investigating a kidnapping will consider other surrounding factors when trying to determine if offences have occurred.
Even if the child takes the leads by asking the parent to take them or by running away to the parent’s house, abduction applies.
Penalties for Abduction of a Child
A parent convicted of abducting a child can face imprisonment up to 10 years. Abduction does not automatically revoke the offender’s right to custody. However, the charge is taken into consideration when considering custody rights. As a result, it’s possible that a charge can lead to losing, or not getting, custody.
If the abduction involves taking the child out of the country sentencing is more severe. There can also be difficulty in returning the child to Canada. The challenge occurs if returning them is outside of the child’s best interest or if the country does not participate in the Hague Convention.
Defending Child Abduction by Parent Charges
Abduction by parent charges can be defended. One potentially effective defence can be if the abduction was done in order to protect the child as outlined in sections 280 to 283, and section 285 of the Criminal Code.
Another defence is an honest mistake regarding the application of a custody order or that the parent honestly believed that they had consent, again these defences are outlined in sections 280 to 283, and section 284 of the Criminal Code.
If the accused maintains that the abduction was for the protection of the child, they must have been removing the child from immediate apparent harm. The assumption of potential harm needs to be reasonable.
An honest mistake with regards to the operation of a custody order is a legitimate defence, although it is difficult to prove. A custody order can provide different options ranging from physical custody to visitation rights. Someone with only visitation rights may not always have the option to remove their child from the premises.
Toronto Abduction Lawyer
If you are facing kidnapping or abduction charges it is important to hire a criminal lawyer. These charges can have severe consequences including imprisonment. Abduction by parent can be a complex matter, especially when involving joint custody. As such, they require an experienced attorney to guide you through the process.
William Jaksa is a Toronto criminal defence lawyer with over a decade of experience. Contact us today for a consultation.