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    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?
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    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.

    Disclaimer: Content on this website is provided for informational purposes only and does not constitute a legal advice.





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