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Old 02-05-2015, 12:01 PM
YYZDaddy YYZDaddy is offline
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Question 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.
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Old 02-05-2015, 12:12 PM
rockscan rockscan is offline
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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?
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Old 02-05-2015, 01:00 PM
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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.
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Old 02-05-2015, 01:02 PM
YYZDaddy YYZDaddy is offline
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Quote:
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.
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Old 02-05-2015, 01:03 PM
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Quote:
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.
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Old 02-05-2015, 01:34 PM
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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.
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Old 02-05-2015, 01:37 PM
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Dadx5 also has had some success in his denial of access issues. Search his threads for that info.
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Old 02-05-2015, 01:54 PM
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Quote:
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.
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Old 02-05-2015, 02:20 PM
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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.
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Old 02-05-2015, 02:50 PM
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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!
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abduction, access, custody, order, withholding access


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