Enforcing Parenting Arrangements
If a parent has a problem enforcing custody or access, depending on the circumstances of the case various civil options may be available. In extreme situations criminal charges may apply.
How can the Civil Courts help?
In most cases where a parent is not following a custody or parenting order, it may not be appropriate or possible for the police to charge a parent with parental child abduction or breach of court order. There are, however, many ways for the civil (non-criminal) court to deal with custody or access problems, even in international cases. Generally speaking, civil remedies should be exhausted before criminal charges will be engaged.
How can Manitoba’s Child Custody Enforcement Act help?
The Child Custody Enforcement Act can help a parent enforce a parenting, custody or access order where the child is under 18 years of age and present in Manitoba. The Act applies to Manitoba court orders, as well as orders from other parts of Canada or other countries, as long as the child had a “real and substantial connection” with that place when the order was made. For an access order to be enforced, it must state clearly when access is to occur. If an order contains general terms (such as access as the parents may agree) the parent seeking access may need to apply to vary the order to include specific access periods.
If the child is still in Manitoba, or has been brought to Manitoba, a person entitled to parenting time, custody or access under an order can ask the court for an enforcement order. The enforcement order may require information about the location of the child to be provided to the court, or require the police to help the parent get the child back from the abducting parent or help the parent exercise access times set out in the order. If access is being denied or is not being exercised, the court may order the parent who is not obeying the order to pay compensation to the other parent for any costs they had as a result of access being denied or not exercised (e.g., for childcare). The court may impose a fine or jail sentence, or both.
The court may refuse to enforce a parenting, custody or access order if there is a concern that doing so would cause the child serious harm.
What are other Civil Remedies?
When a parent takes a child away from the parent given parenting time or custody in a court order, or denies court ordered access, contempt proceedings may also be started to bring the abducting or access-denying parent before the court that made the order. Contempt proceedings may be brought any time a person disobeys a parenting, custody or access order. Specific requirements must be met. The court may order additional access times or, in some cases, impose a fine or jail sentence, or both, if satisfied the order has been disobeyed.
If a Manitoba child has been taken to another province, civil court proceedings to enforce the parenting, custody or access order and have the child returned must be taken in the other province. Like Manitoba, other provinces have legislation that parents can use to try to enforce parenting, custody and access orders. Usually, parents must hire their own lawyers to enforce a parenting, custody or access order in another province. In most provinces, the court can refuse to enforce the order if satisfied that doing so would cause the child to suffer serious harm, or if satisfied that the child has no real connection with Manitoba when the order was made because of the length of time he or she had been living elsewhere.
What is parental child abduction?
If one parent takes or keeps a child under 14 years of age away from the other parent without the other’s consent, he or she may be charged with parental child abduction (kidnapping) under the Criminal Code of Canada. It doesn’t matter if there is a Canadian court order of custody (parenting arrangements) or not. Special consent from Manitoba Justice must be given before a parental child abduction charge can be laid where there is no Canadian custody order.
There are a number of situations where a charge of abduction may be laid, even if there is no Canadian custody order:
- The parents and child have been living together and suddenly one parent takes the child out of Manitoba without the other’s consent, intending to deprive the other of his or her rights as a parent.
- The parents are separated and previously agreed that their child will live with one of them. Unless the parent who has been living with the child consents, the other parent cannot later decide to keep or take the child away, unless he or she gets a court order.
- There is a foreign custody order not being complied with.
When the court has ordered that one parent has custody or parenting time of a child and the other parent takes away or keeps the child without the custodial parent’s consent, that parent may be charged with abduction. A charge may also be laid if one parent with joint custody or parenting time takes away or keeps the child without the consent of the other joint custodial parent.
A parent charged with abduction may have a defence to the charge if the action was taken to protect the child or the parent from immediate danger, or if the other parent agreed he or she could take or keep the child. It is not a defence to a charge of parental child abduction to say the child wanted to go or stay with the abducting parent.
Parents who feel ongoing custody or parenting arrangements no longer meet their child’s needs must ask the court to make a custody or parenting order or change the existing order if they cannot agree on a new arrangement. Where a custody or parenting order exists, it is best to have a new, changed order prepared, even if parents agree to a new arrangement.
Where an abduction charge is laid, a Canada-wide warrant may be issued for the arrest of the abducting parent. This means the parent can be arrested anywhere in Canada and returned to Manitoba to face the criminal charge. If convicted of the charge of parental child abduction, a parent may be imprisoned for up to 10 years.
As is the case with other criminal charges, whether or not charges are laid depends on the particular fact situation.
The laying of criminal charges is not a remedy that necessarily results in return of the child to the complainant parent. That parent may still need to obtain an order from the civil court.
How can the police help?
If a child has been taken away by one parent without the other custodial parent’s consent, the police and a lawyer should be contacted immediately. In Winnipeg, contact your local police division or the Winnipeg Police Service Communications Centre at 204-986-6222 and seek advice from the duty officer. In an emergency, call 911.
Outside Winnipeg, parents should contact the local municipal police service or RCMP detachment for assistance in abduction cases.
Whether or not it is a situation where parental child abduction charges are possible or appropriate, if a parent does not know the whereabouts of their child the parent may report this to the police and seek their assistance to locate the child and check on the child’s well being. The police may also speak to the other parent if the child is with them.
What if my child has been abducted from Canada?
If a parent abducts a child from Canada (or to Canada from another country) an international treaty called The Hague Convention on the Civil Aspects of International Child Abduction (The Hague Convention) may be of assistance. The treaty allows parents with custody rights (whether or not there is an order) to request the return of their children from another country.
The Hague Convention requires that children wrongfully removed from the country of their residence, or wrongfully kept in another country when the left-behind parent has a right of custody, be promptly returned to his or her home country. The Hague Convention applies to children under 16 years of age.
There are some limited exceptions to the requirements in The Hague Convention to return children, such as if the left-behind parent agreed the child could be taken to or remain in the other country, the child would suffer physical or psychological harm if returned, or the child wishes to remain in the other country and is old enough to have his or her views considered. These exceptions have generally been very strictly interpreted by the courts.
A much less difficult test applies when requests for return of a child are made more than a year after the child’s removal or retention. The court in the other country can refuse to return the child if it feels the child is now settled in the new country. For that reason, it is extremely important for a parent with a right of custody who wishes to request the return of the abducted child to do so at the earliest opportunity.
In some cases, a request for the return of a child can result in a parent voluntarily returning the child. In other cases, a court application in the other country may be needed. Some countries provide legal aid or other legal assistance in these cases, but in many cases, the left-behind parent may need to hire a lawyer in the other country.
The Hague Convention can also be used to request help in arranging access when a child is in another country where the Convention is in force. The assistance that can be provided is more limited, however, and varies significantly from country to country. As with requests for return, parents may need to apply to court for an access order if arrangements cannot be agreed upon.
Approximately 86 countries around the world have now signed and agreed to comply with the terms of The Hague Convention, and it is in effect between Canada and 75 of these countries. The child abduction section of the website for the Permanent Bureau of The Hague Conference contains additional information about the Convention. It can be accessed at: www.hcch.net.
Each country (and in Canada each province) has to appoint an official as Central Authority to help with the operation of the Convention and the handling of incoming and outgoing cases.
For more information about how to request a child’s return and to learn if The Hague Convention is law in the country where a child has been taken, contact Manitoba’s Central Authority at:
Family Law Section, Legal Services Branch
1230 – 405 Broadway
Winnipeg MB R3C 3L6
Toll free: 1-800-282-8069 (Ext. 0268)
What other services can help when a child is abducted?
Even if a child is abducted to a country that is not a party to The Hague Convention, an application to a foreign court to enforce a Manitoba court order may still result in an order for the return of the child. Parents should obtain legal information and advice as to their options from a lawyer in the country in question.
Global Affairs Canada can provide parents of abducted children with a range of assistance, including:
- names of lawyers and information on the legal system in the other country
- certification of documents
- ascertaining the welfare of the child
- obtaining passport and visa information
- reporting on the status of court proceedings
They have published an information booklet International Child Abductions: A Guidebook for Left-Behind Parents and can be contacted at:
Global Affairs Canada
Another organization that can help parents when a child is abducted is MissingKids.ca. They offer families support in finding their missing children and provides educational materials to help prevent children from going missing. For more details, contact: