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Temporary Order, Withholding access, and Abduction(?)

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  • Temporary Order, Withholding access, and Abduction(?)

    Hello,

    I have a temporary order stating joint custody and shared access (alternating weeks).

    My ex is withholding our son (7) without my consent, and refuses to return him when requested. We are going to court tomorrow, hopefully to resolve this.

    Doing some research, I found the definition of Abduction in the Criminal Code. I had always believed abduction was more along the lines of kidnapping, but I read this as very applicable to my situation.

    Does anyone have experience as to how a judge interprets this? Am I completely misunderstanding? If it matters, I am in Ontario.


    Sections 282 and 283 of the Criminal Code of Canada

    Sections 282 and 283 of the Criminal Code of Canada

    Section 282

    (1) [ Abduction in contravention of custody order ]

    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, 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 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) [ Where no belief in validity of custody order ]

    Where a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order but the evidence does prove an offence under section 283, the accused may be convicted of an offence under section 283.

    Section 283

    (1) [ Abduction ]

    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) [ Consent required ]

    No proceedings may be commenced under subsection (1) without the consent of the Attorney General or counsel instructed by him for that purpose.

  • #2
    If you have an order then contempt would be the best avenue. Do a search on the forum for contempt with respect to access/visitation.

    Abduction is a tough one, review the threads with LovingFather32. Hes currently in an ugly battle over his ex abducting his child.

    Like I said though, if you've got an order for access, you're looking at contempt. Also search for denial of access in these forums.

    Do you have legal representation?

    Comment


    • #3
      Of course report the matter to the police (they will open a file) - get the file #. This may come in handy in future court matters.

      Comment


      • #4
        Originally posted by rockscan View Post
        Do you have legal representation?
        Yes I do, and she is involved with everything. Like many lawyers, she is busy and I do have to wait to get feedback. I will obviously be with her in court on Friday. Thank you for the references... will do more reading.

        Comment


        • #5
          Originally posted by arabian View Post
          Of course report the matter to the police (they will open a file) - get the file #. This may come in handy in future court matters.
          Absolutely! I know they won't act directly, but I need this history of her actions recorded. Thank you.

          Comment


          • #6
            See about having it written into the order that you have police enforcement of the order. Then they come help get your child for access.

            Comment


            • #7
              Dadx5 also has had some success in his denial of access issues. Search his threads for that info.

              Comment


              • #8
                Originally posted by rockscan View Post
                See about having it written into the order that you have police enforcement of the order. Then they come help get your child for access.
                Thank you... we are definitely requesting that on Friday.

                Comment


                • #9
                  Summary from additional research on abduction:
                  It would be extremely difficult to prove criminal intent in my case (there is none).
                  It's a case of poor/malicious judgement and poor parenting. Contempt is the more likely result.

                  Comment


                  • #10
                    Definitely look through Dadx5 posts. His childs mother withholds repeatedly and he just was awarded increased access enforceable by the police and his ex is spinning. While its a win in the access department, the tactics his ex is using are creating an emotional mess for their daughter. It will be an uphill battle but more and more judges (it seems) are not letting custodial parents get away with denying access. Your ex shouldnt be playing with fire.

                    Good luck to you and keep us posted!

                    Comment


                    • #11
                      It is very unlikely that you will be successful with an abduction charge. Unfortunately case law is still evolving for that. Fortunately there are judges paving the way for change, adopting a very low tolerance for this.

                      The system's worry is that criminal proceedings will add increased complexity to the family matter which would not be in the child's best interests.

                      Additionally, the matter of abduction entails a charge assessment completed by the attorney general to obtain a prosecution. This is a fairly complex process as well.

                      It's sad that most parents rely on code 285 (I mean only sad if it's been made up):
                      285. Defence
                      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.
                      This is where it gets clouded in to a he said/she said battle. One which criminal court would rather reserve for family court. "But the child doesn't want to go .. she said she'd hut herself if she had to go to her father's". The latter exemplifies how alienation makes this process even harder.

                      Like I said earlier, judges and family law are slowly catching on.

                      When D3 went missing I was unable to file a missing person's. But when I got the police records of my visit (privacy act) it read that I was not satisfied that I could not make a report. That's a nice thing for a judge. No acquiescence here.

                      I even called missing kids Canada. I spoke with someone there for quite a while. They even contacted the police for me but .. nothing they could do.

                      Now my ex has been found to have played the system very hard. All allegations proven false. Still .. no consequences.

                      Judges and the law are catching up to this phenomena. The more examples that are made out of the abducting parent, the less we will see this happening.

                      Now go get her on contempt.
                      Last edited by LovingFather32; 02-05-2015, 05:28 PM.

                      Comment


                      • #12
                        My child's mother has withheld a lot. I do have a police enforcement clause and even that has not always helped. I lost months at a time. On one occasion my ex withheld but told her lawyer that I already had the child and police had to get involved to even confirm that the child was in my ex's care. It was horrible.

                        Its been a really long long legal battle. So much so that all the staff at the front of the courthouse know me and my wife by name but things are starting to improve and the judges are stoping my ex's games immediately. Over christmas she withheld for 1 day and then used CAS and police to withhold for a 2nd visit and I ended up getting a temporary order for primary residence and mom only see's our daughter 2 visits a week. There was a lot more to the situation but the point I am trying to make is focus your efforts with family court, document everything and get police reports the court system does seem to be changing, its just a bit of a battle.

                        Comment


                        • #13
                          Quick update.... things went very well. Ex got verbally slapped hard and judge actually appeared angry.
                          No long term change yet, but I now have my son through the weekend.
                          More complexity ongoing but definitely a step in the right direction. This judge is not known to be father friendly, however, IF there is any bias, she may have just lost it.

                          Comment


                          • #14
                            Did you get an endorsement? Police enforcement?

                            Happy for you that things went well for you today. Keep the faith.

                            Comment


                            • #15
                              This was just a scheduled motion on OCL involvement, but given recent events brought up the withholding. The judge wasn't interested in enforecent (was requested).
                              This is on record so I suspect if anything happens again, contempt and enforcement will be a breeze.

                              Comment

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