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Old 03-20-2019, 11:57 PM
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Custody and access orders or agreements are civil law. Unless the courts specifically order the police to act in the matter they can't do much. Under the CLRA the father has joint custody and has every right to pickup his child from school.

This matter is significantly different than the previous and very unfortunate one. Do not mix the two matters. In that matter their was an access order, the parent called the other parent and made very direct comments that lead to the amber alert. There was evidence and an access order was in violation. This case had NONE of those elements.

The problem that leads to the delays in parental child abductions is rooted in the Criminal Code of Canada section 282 and 283 respectively. 282 is for situations of parental abduction when there is no custody and access order / agreement in place. 283 is when there IS a custody and access order in place.

A good review of how it all works can be found here:

https://www.ppsc-https://www.ppsc-sp...d/p5/ch10.html

and here

https://www.justice.gc.ca/eng/fl-df/...ep-rap/a_c.asp

I remind everyone that this kind of conduct is actually recognized by the courts, as far back as 1990 as "common".

R. v. McDougall (C.A.), 1990 CanLII 6788 (ON CA)
Date: 1990-12-19
Other citations: 1 OR (3d) 247; 42 OAC 223; 3 CR (4th) 112; 62 CCC (3d) 174; [1990] OJ No 2343 (QL)
Citation: R. v. McDougall (C.A.), 1990 CanLII 6788 (ON CA), http://canlii.ca/t/g1bk2

Quote:
The events leading to the charges against the appellant in February 1988 are all too familiar to persons who have had to deal with family break-ups and the bitter disputes which occur between separated spouses.
As well the court also has dealt with the no-return-phone-call and has explicitly said:

Quote:
Common sense and decency would dictate that the appellant should have called Caroline McDougall on Monday morning to tell her of his plans, since he had not heard from her on the previous evening. Unfortunately, neither common sense nor decency are always in good supply when parents are having custody and access disputes.
It is important to note that criminal charges for "abduction"...

Quote:
...is not aimed at parents who refuse to act in a responsible and co-operative manner in the administration of the terms of a custody order. It targets parents who abduct their children...
The Justice concludes with:

Quote:
It is very common in custody and access disputes that each parent feels terribly wronged and makes the most serious allegations against the other. It is not the usual case that all of the fault is one one side. More often, both parties have acted from time to time in a spiteful or vindictive fashion. A criminal prosecution is not the appropriate means of settling accounts or obtaining an advantage in a long and ongoing unpleasant custody or access dispute. Criminal prosecutions cannot become a weapon in the arsenal of parties to acrimonious family disputes. Conduct which is mean, petty, uncooperative, and spiteful is not the stuff of the criminal law. The abduction of children is. It is important that a crime created to punish the latter not become a means of responding to the former.
I have linked the guidelines ("MODEL PARENTAL CHILD ABDUCTION CHARGING GUIDELINES - OCTOBER/98") on how 282 and 283 should be applied. I note that they have not been updated since 1988!

The challenge is that both sections of the CCC fail is that for both charges to be laid requires for both:

Quote:
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.
If we want to solve these problems in Ontario with parental disputes we need to have special constables and a major update to the Children's Law Reform Act and the Child and Family Services Act that gives these constables the ability to act in these matters quickly and in an appropriate way.

Most of the educated parental abductors know the law and can get away with it. For example:

https://www.cbc.ca/news/canada/toron...land-1.1184888

As many of you might not recall. Steven Watkins was a member of this forum for a while. He raised his concerns about child abduction possibilities and solid evidence. Courts wouldn't listen. Mother ran with the kids to Poland.

No parent, who has legal custody of their child should have guns drawn at them in a public place. The police should have realized when they pulled up to the restaurant that there wasn't an issue. It would have been much better if a constable went in. Talked to him and sorted things out.

The other issue lies in the fact that a parent can lie about there being a custody and access order. The police, CAS, etc... Have no public system to check up the record to see if a parent is lying. This whole fiasco is a complete systemic failure. The court system is terribly out of date. Court orders should be visible to the police and CAS. They shouldn't have to request them from parents. There should be a provision that all orders and agreements have to be registered with CPIC.

Had the police had access to the information that wasn't actually there. They would have probably totally handled this situation quite differently.

Also, this is the first time I have ever heard of a parent abducting a child in a taxi in Canada. I have read a lot. That should have been a tip-off for the cops to not go in all guns blazing.

A properly trained constable who focuses on family law and family situations would have known that the pattern of behaviour of the parent was not that of an abductor. There are common models for evaluating this stuff. None of them were applied.

Good Luck!
Tayken
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