FAQ's

Q: Are there any legislative provisions within Canadian law that might deter my ex-partner from abducting my child, or might assist me in the recovery process?

A: Syrtash: Yes, there are both civil and criminal legislative provisions that deal with child abduction. Federal legislation such as the Divorce Act or Criminal Code of Canada deal with abduction, or prevention of abduction, anywhere within Canada. There is also province-specific legislation.

Under section 16(6) of the Divorce Act, the court has the authority to make orders for any period of time (definite or indefinite), or until the occurrence of a specified event. the court also has the discretion to impose any terms, conditions or restrictions that it sees fit, allowing for very clear and specific directions. The court is able to essentially bar a party from travelling outside of the country, which may deter that party from attempting to abduct a child.

The Criminal Code of Canada includes a number of provisions prohibiting and punishing the abduction of a child. Section 127 makes it an offence for a person to disobey a custody or access order made under the Divorce Act. Section 281 makes it an offence for a person who is not the parent, guardian or person having lawful care or charge of a person under 14 to unlawfully take, entice away, conceal, detain, receive or harbour that person 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. Section 282 makes it an offence for a parent or guardian or person having the lawful charge or care of a person under the age of 14 years to take, entice away, conceal, detain, receive or harbour 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. Section 283 makes it an offence for a parent, guardian or person having the lawful care or charge of a person under the age of 14 years to take, entice away, conceal, detain, receive or harbour 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. In addition, subsection 57(2) of the Criminal Code makes it an offence for anyone who, for the purpose of procuring a passport for himself or any other person or for the purpose of procuring any material alteration or addition to any such passport, makes a written or an oral statement that he or she knows is false or misleading.

At the provincial level, Ontario's Children's law Reform Act is in part specifically oriented towards discouraging the abduction of children as an alternative to the determination of custody rights by due process. Other provinces have taken similar measures in an attempt at more effective enforcement of custody and access orders between the provinces through provisions within the Uniform Extra-Provincial Custody Orders Enforcement Act.

Article 46 of Quebec's Code of Civil Procedure grants the courts and judges full capacity and discretion in custody and access matters. It is within the court's authority at any time to make orders to safeguard the rights of parties, for any period of time and with any conditions that they see fit. They may also pronounce orders at their discretion where circumstances arise that are not specifically dealt with by the legislation. Article 153 of the Code also allows for one party to seek a monetary guarantee from the other party. In these circumstances, the monetary guarantee will be available for confication in the event that a child is abducted, in order to cover the necessary costs that could be incurred to recover the child.

Manitoba has provincial legislation that can provide enforcement of custody or access orders even without reciprocal arrangements with another jurisdiction. The Child Custody Enforcement Act allows the Manitoba court to enforce an extra-provincial custody order and make any orders it considers necessary to give effect to an order, unless it is satisfied that the child did not (at the time the order was made) have a real and substantial connection with the jurisdiction in which the order was made. This piece of legislation also empowers the Manitoba court to authorize a person to apprehend a child, with or without notice, to give effect to a court order regarding custody. Like other provinces, the Manitoba court has jurisdiction to make orders preventing the reomoval or a child, or to secure the return of a child.

Manitboa's Family Maintenance Act allows the court to order that it be provided with information as to the whereabouts of a person to enable an application to be brought for custody or enforcement of a custody order. Section 60 of the Queen's Bench Rules provides for civil contempt proceedings which may be taken to enforce a custody order.

Q: Can you give me any information regarding Child Abduction Laws in other countries?

A: Syrtash: The following is some information regarding Child Abduction laws in a number of other countries. The information provided is extracted from answers to a questionnaire submitted by the Hague Conference on Private International Law concerning the Hague Convention on the Civil Aspects of International Child Abduction.

A vast number of countries remain either non-compliant with the Convention, or appear unable to fully understand the operation of the Convention within their own legal system. Please refer to http://hcch.e-vision.nl for any updates and information regarding a specific country's involvement with the Hague Convention.

ARGENTINA:

Article 264 of the Argentine Civil Code establishes that in some cases, express consent of both parents will be required in order for a minor to carry out certain actions. This provision refers to parents legally married and living together with the child, as well as parents that have separated or are divorced, where in most cases one of the parents has physical custody of the minor, and the other has legal access with the minor. Among the actions for which express consent is required of both parents is included the authorization to leave the country. This means that either the father or the mother may grant or deny this authorization, or grant it for a limited period of time, and therefore express his or her agreement or disagreement regarding a possible change of residence of the minor. In other words, from article 264 quater derives the need to comply with the consent of both parents in order for the child to be able to change his residence to a foreign country.

Act 24.270 of the Argentine Penal Code establishes that the parent or third person who, wrongfully, prevents or hinders the contact between children and their non custodial parent, shall be punished with one month to one year imprisonment. Article 2 of the same act indicates the same punishment for the parent or third person who in order to prevent contact between the child and its non custodial parent, removes it from its home without judicial authorization.

In case the child is taken abroad for the same purpose, without judicial authorization, the punishment is elevated.

Article 146 of the Argentine Penal Code makes punishable the behavior of a person who withdraws a minor under the age of 10 from the custody of his parents, tutor, or the person in charge of his care, as well as the conduct of anybody who retains or hides the minor. On this matter, jurisprudence is divided between those judges who understand that this punishment applies to a parent, and those who limit it s application to acts performed by a person other than the parents of the minor.

A civil court, within a divorce or custody proceeding, may order the prohibition of the minor to leave the jurisdiction of the court or the country, but cannot criminalize the removal or retention of the child. Once the removal has ocurred, a criminal judge may intervene. Moreover, if any suspition or risk arouses that a parent may abduct a child, the civil court may withhold the passport of the minor. If the passport is already being issued, the civil court may order the police authorities not to deliver the document to his parent.

Prohibitions to leave the country may be granted ex parte, but can only be ordered during judicial hours. The withdrawal of the child from his parent's custody can also be required of a civil judge as a precautory measure, but the emergency and danger of the delay will have to be demonstrated if it is to be extended ex parte, and may be ordered only during judicial hours.

When a parent wishes to relocate with the child in a foreign country, he or she will need to acquire the court's authorization when a legal custody arrangement has been settled, and this is also the case when a parent has only physical custody of the minor, since according to art. 264 of the argentine code, consent of both parents is required in order to leave the country. The inconvenience is that when a parent is denied the relocation order, there is a risk that he or she may abduct the child.

AUSTRIA

The U.S. Department of State 2004 report on compliance with the Hague Convention on the Civil Aspects of International Child Abduction identified Austria as one country that is noncompliant with the Convention. Reports have indicated a failure of Austrian authorities to act expeditiously in cases involving custody or abduction, resulting in delays so significant that in some cases court that would have otherwise enforced the return of a child have reversed decisions because the child had become settled in Austria and would be negatively effected by a court ordered return to the non-abducting parent.

Legislative changes that could consolidate Convention adjudications in fewer courts are pending. In November 2003, the Austrian Parliament passed legislation limiting the number of courts empowered to hear Convention return cases to sixteen, down from over two hundred. As part of the new law's implementation, the Austrian Central Authority is also to provide the courts with special training to educate judges about Convention case issues. These changes are not scheduled to go into effect before 2005, so it maybe several years before the effects of the legislation on judicial processing of return applications can be determined.

DENMARK

If one parent has sole custody of the child, this parent has the right to determine where the child should live, even if it is outside of Denmark. The parent, who does not have custody of the child, cannot take the child abroad without the consent of the holder of the custody. When parents on the other hand have joint custody, and they disagree about who is to have sole custody, both parents shall consent to the child leaving the country. When proceedings regarding custody have commenced, the court can dec ide that one parent should have temporary custody during the case. Such a temporary decision can also be made by the Ministry of Justice, Dep. of Private Law, if there is a risk that the parent, who has the custody of the child, is going to bring the child abroad.

It follows from the Danish criminal code that a person, who wrongfully takes the child abroad, can be sentenced to a term of imprisonment of up to 4 years. Covered by this article are both situations where the non-abducting parent has sole custody and where the parents have joint custody and they disagree about who is to have sole custody. In case of a report about one parent's attempt to wrongfully take the child abroad, the police can remove the child from the parent, who has tried to wrongfully bring the child abroad, and the child may then be placed with the other parent. If the parents have joint custody, it must be obvious to the police that the parents disagree about the custody, that there is no consent to the child leaving the country, and signs that the parent is leaving the country.

Decisions of temporary custody are often made by the court, when parents disagree about who is to have sole custody. They are, however, only made administratively if there is found to be an actual risk that one of the parents will take the child out of the country. In cases of joint custody the protection lies in the demand for consent to the child leaving the country.

GERMANY

An abductor must expect to be confronted by a right to the return of the child under section 1632 [1] of the German Civil Code. The proviso to this is that the child is being illegally retained from the entitled parent. If the parents have joint custody, then retaining the child and requiring its return can both be unlawful. Therefore, the order to return the child requires an examination of the child's best interests. Furthermore, a parent who illegally retains the child from the other parent and endangers the physical, mental or emotional well-being of the child in the process can lose parental custody either entirely or in respect of certain aspects through a measure by the Family Court pursuant to section 1666 [1]. In addition, mention is made of the provision of section 1671, which regulates cases in which parents who have joint custody are not only living apart temporarily. In this case, sole parental custody or partial parental custody can be granted to only one of the parents upon request if it can be expected that this is in keeping with the best interests of the child.

If the abductor had the right of access to the child, ensuing from the abduction, it can also be ordered that the visitation procedures be changed or, pursuant to section 1684 [4] , that the right of access be restricted or disallowed.

Pursuant to section 1684 [3] in conjunction with subsection [2], the Family Court can specify the extent of the right of access and its exercise (in respect of third parties) more strictly and by court order require those concerned to comply with their obligation to refrain from any actions that interfere with the child's relationship to the other parent or impede the child's upbringing. In so far as it is necessary in the best interests of the child (section 1684 [4]), i.e. in long-term measures, and if the child's welfare would otherwise be endangered (section 1684 [4], second sentence, BGB), the Family Court can either restrict or disallow right of access. If the other parent should make the probability of abduction sufficiently convincing through adequately concrete factual testimony, the family courts' procedure is to either disallow access or to order that access only be allowed when a willingly involved third party is present.

If the abductor has a right to maintenance in respect of the parent from whom the child is being withheld, under the conditions set forth in section 1579 no. 6, such parent's right to maintenance can be restricted by a Family Court decision. Pursuant to this, maintenance can be denied, reduced or limited for a time, if, even in safeguarding the interests of a joint child entrusted to the entitled parent, making the obligor liable would be grossly inequitable.

Furthermore, the abductor must expect to make good on claims to compensation by the parent having custody. Such claims could be provided under section 823 [1] on account of interference with parental custody. Compensable damage can consist in, e.g. the costs incurred in returning the child or also in the costs of a detective investigating the whereabouts of the child. Section 823 [2] can also give rise to a claim to damages as a result of a violation of a protective law.

From the standpoint of criminal law, depending on the specific circumstances, abductions can be regarded as

- Serious Trafficking in Human Beings (section 181 (1) no. 2 of the Criminal Code _ StGB)

  • Kidnapping (section 234 StGB),
  • Child Stealing (section 235 StGB),
  • Trafficking in Children (section 236 StGB),
  • Deprivation of Liberty (section 239 StGB),
  • Kidnapping for Extortion (section 239a StGB) or as
  • Hostage Taking (section 239b StGB).

The differing degrees of criminal liability content and injustice which the aforementioned offences constitute are set forth in the minimum sentences by which they are punishable. Whereas kidnapping for extortion and hostage taking are generally punishable with a prison sentence of no less that five years (up to 15 years), serious trafficking in human beings, kidnapping, child stealing, trafficking in children and deprivation of liberty are punishable with lesser minimum sentences.

Serious Trafficking in Human Beings: as a rule, prison sentence of no less than one year (up to ten years);Kidnapping: as a rule, prison sentence of no less than one year (up to 15 years);Child Stealing, Trafficking in Children and Deprivation of Liberty: as a rule, prison sentence of one month (up to three or five years) or a fine, in serious cases, prison sentence of no less than six months or no less than one year (up to ten years).

In the case of child stealing, deprivation of liberty, kidnapping for extortion and hostage taking, the minimum prison sentence is increased if the offender causes the death of the abducted victim through negligence (carelessness).

Kidnapping for Extortion and Hostage Taking resulting in death caused by carelessness: prison sentence of no less than ten years or life; Child Stealing and Deprivation of Liberty resulting in death caused by negligence: as a rule, prison sentence of no less than three years (up to 15 years).

Anyone could be the victim of severe trafficking in human beings, kidnapping, deprivation of liberty, kidnapping for extortion or hostage taking. The victim of child stealing or trafficking in children can only be adolescents (section 235 (1) no 1 StGB, section 236 (2) StGB) or children (section 235 (1) no. 2 StGB, section 236 (1) StGB).

Whoever forms an organisation, the objectives or activity of which are directed towards the commission of abductions, which under the criminal code constitute severe trafficking in human beings, kidnapping, child stealing, trafficking in children or deprivation of liberty, or whoever participates in such an organisation as a member, recruits for it or supports it, will be punished with imprisonment for not more than five years or a fine pursuant to section 129 (1) StGB.

Whoever forms an organisation, the objectives or activity of which are directed towards the commission of abductions, which under the criminal code constitute kidnapping for extortion or hostage taking, or whoever participates in such an organisation as a member, will be punished with imprisonment from no less than one to ten years pursuant to section 129a (1) no. 2 StGB. Whoever supports such an organisation or recruits members or supporters for it, will be punished with imprisonment from six months to five years (section 129a (3) StGB).

Pursuant to section 129b of the StGB, which entered into effect on 30 August 2002, sections 129 and 129a StGB also apply to organisations in foreign countries.

Court orders can be obtained either in connection with divorce proceedings or also separately, albeit primarily by filing a request. On the material basis of section 1666, the Family Court can take action proprio motu as well and take any decisions it considers reasonable. Where there are indications of impending non-compliance with the orders, the enforcement measure can be warned of in the decision on right of access or custody restrictions itself, in order to make more expedient imposition and execution possible later.

In the event that one parent impedes or prevents the implementation of an (already imposed) right of access, a court mediation proceeding is possible.

ISRAEL

The Israeli Civil Procedure Regulations, in its section relating to the Hague Convention Law (Return of Abducted Children), 1991, provides the Family Court with the jurisdictional ability to take steps to prevent further abduction, in cases where a child has already been abducted to Israel. Once the case for the return of a child to a Hague member state is filed in the Family Court, the judge may consider requests to: a) issue stop orders against the child and/or the one who is keeping the child in Israel; b) to issue an order preventing the child from leaving a specific jurisdiction within Israel; c) order the depositing of the childs passport with the court; d) order the police to investigate the circumstances of the abduction, to locate the child and to assist a social welfare officer to bring the child before the court; or, e) issue any other order that could prevent further harm to the child or to the rights of the interested parties, or that could ensure the voluntary return of the child, or the peaceful resolution of the matter.

The Israeli Civil Procedure Regulations (Regulation 376) also gives the court the general jurisdiction to issue stop orders when a civil suit is filed before it.

There are three sections in Israeli Penal Law related to abduction of a minor. Two sections relate to the crimes of abduction within Israel and one section relates to abduction from Israel to another country. All are considered serious felonies with one felony carrying a maximum penalty of 7 years imprisonment, and two carrying a maximum penalty of 20 years imprisonment.

Stop orders may be obtained in emergency situations, out-of-hours and ex-parte. An order for the removal of a child from the parents physical custody by the social welfare services may also be obtained in an emergency situation when it is suspected that an abduction is imminent or that the parent may attempt to go into hiding with the child.

Parents who consult with Israeli authorities regarding their rights to leave the country with their children are advised to seek relocation orders rather than risk taking unilateral action and being charged with abduction. This is not to say that relocation orders do not pose their own problems with respect to future abduction. Relocation orders could potentially encourage the parent who is left behind and denied regular access to the child, to contemplate abducting the child, or to unlawfully retain the child during one of the childs visits.

There have been recent administrative measures taken by the Ministry of Interior, according to which, children of divorced parents may receive passports only if both parents arrive to sign their consents. In general, stop orders are used quite often and are quite effective in preventing abduction. These orders are usually used in conjunction with an order to deposit passports, unless it is an emergency situation and there is no time for the passports to be deposited.

JAPAN

Japan is not a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Japanese civil law stresses that in cases where custody cannot be reached by agreement between the parents, the Japanese Family Court will resolve the issue based on the best interests of the child. However, compliance with Family Court rulings is essentially voluntary, which renders any ruling unenforceable unless both parents agree.

The Civil Affairs Bureau of the Japanese Ministry of Justice states that, in general, redress in child custody cases is sought through habeas corpus proceedings in the court. There is no preferential treatment based on nationality or gender. Although visitation rights for non-custodial parents are not expressly stipulated in the Japanese Civil Code, court judgments often provide visitation rights for non-custodial parents.

JORDAN

Jordanian laws regarding divorce and custody of minor children are adjudicated in religious courts. If the marriage partners are Muslim, disputes will be resolved before a Sharia court judge who will apply principles of Islamic law. In the case of Christians, the court will be an Ecclesiastical Court composed of clergymen from the appropriate religious community. For Christians, the law will be derived from principles governing family status in the Greek Orthodox Church, Roman Catholic Church or other Christian denominations.

In both theory and practice, Muslim and Christian courts in Jordan differ very little in how they resolve disputes over the custody of children of divorced or separated parents. The relevant laws all give priority for custodianship to the mother as long as certain restrictive conditions are met. In Muslim courts, this right of custody extends to the natural mother until the children reach 18 years of age. In cases where custody of small children is granted to a woman other than the mother, custody reverts to the father when a boy reaches age nine and a girl reaches age eleven. Christian courts will generally award custody to the mother until the children come of age.

In actual practice, the conditions placed on the mother's primary right to custody often enable the father to maintain a great deal of influence on the rearing of the children even though he may not have legal custody. For example, travel restrictions exist in Jordan. The mother must seek the father's approval to travel with the children. Frequently, he is actually able to assume legal custody against the wishes of the mother, when she is unable or unwilling to meet the conditions set by law for her to maintain her right to custody of the children.

A mother can lose her primary right to custody of a child in a number of ways. The court can determine that she is incapable of safeguarding the child or of bringing the child up in accordance with the appropriate religious standards. The mother can void her right to custody by re-marrying or by residing in a home with people that might be "strangers" to the child. The mother may not deny visitation rights to the father or the paternal grandfather and may not travel outside Jordan with the child without their approval and the approval of the court. In general, a Jordanian man divorcing his non-Jordanian wife will be awarded legal custody of their children by showing that any of the above conditions may not be met to the satisfaction of the court.

In cases where the father has custody of a child, the mother is guaranteed visitation rights. It has been the experience of the Embassy in Amman that the father and the paternal grandparents of the child are generally very open and accommodating in facilitating the right of the mother to visit and maintain contact with the child.

Custody orders and judgments of foreign courts are not enforceable in Jordan if they potentially contradict or violate local laws and practices. For example, an order from a Canadian court granting custody to a Canadian mother will not be honored in Jordan if the mother intends to take the child to Canada and live outside of Jordan. Nor will Jordanian courts enforce a Canadian court decree ordering a parent in Jordan to pay for child support since Jordanian law states that the parent with custody is responsible for providing financial support for the child.

Child abduction is a serious offense in Jordan. Any person, including a parent, who abducts a child in order to deprive the legal guardian of custody, or to unlawfully obtain custody and remove a child from Jordan, faces a prison sentence of three months to three years and a fine. A mother may also face serious legal difficulties if she attempts to take her children out of Jordan without the permission of the father. Border officials may ask to see such permission in writing before allowing children to exit.


 
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Nothing on this website should be relied upon as legal advice. All information on this website is general in nature and neither Garfin Zeidenberg LLP nor John T. Syrtash shall be held legally liable in the event that any party relies on any information recited herein to their detriment. All readers are strongly advised to seek the counsel of a highly experienced family law lawyer in their jurisdiction before taking any steps in respect of their questions or problems.