NCJ Number
66323
Journal
CRIMINAL LAW QUARTERLY Volume: 21 Dated: (MARCH 1979) Pages: 176-98
Date Published
1979
Length
23 pages
Annotation
THE ABDUCTION OF CHILDREN BY ESTRANGED PARENTS IN CANADA IS EXAMINED IN RELATION TO THE PRACTICAL PROBLEMS IN ABDUCTION CASES, TO THE LAW, AND TO PROPOSED LEGISLATIVE SOLUTIONS.
Abstract
SECTION 250 OF THE CANADIAN CRIMINAL CODE PROHIBITS CHILD ABDUCTION, BUT EXEMPTS ANYONE CLAIMING IN GOOD FAITH A RIGHT TO POSSESSION OF A CHILD. THE LAW PROVIDES THAT BOTH PARENTS, SUBJECT TO ALTERATION BY COURT ORDER, GENERALLY HAVE LAWFUL CUSTODY OF THEIR CHILDREN. THE WATTS CASE ESTABLISHED THAT A PARENT'S RIGHT TO CUSTODY OF A CHILD MAY BE TERMINATED BY A COURT ORDER. IN THE HAMILTON CASE, THE COURT RECOGNIZED THE VALIDITY OF A FOREIGN DIVORCE AND CUSTODY ORDER. THE AUSTIN CASE ESTABLISHED THAT IGNORANCE OF THE LAW MAY BE A DEFENSE TO CHILD ABDUCTION. ALTERNATIVES TO SECTION 250 INCLUDE CONTEMPT OF COURT AND SECTION 116 OF THE CRIMINAL CODE. ALTHOUGH CHILD STEALING IS LISTED AMONG EXTRADITABLE OFFENSES, NUMEROUS PROBLEMS ARISE IN CASES OF INTERNATIONAL CHILD ABDUCTION. PRACTICAL PROBLEMS IN CHILD ABDUCTION CASES INCLUDE POLICE AND JUDICIAL RELUCTANCE TO GET INVOLVED IN FAMILY DISPUTES AND THE DIFFICULTY OF PROVING CRIMINAL INTENT. IN THE U.S., TREATMENT OF CHILDSNATCHING REVOLVES AROUND THE CUSTODY ORDER CONTRAVENTION. A LAW ON CHILD ABDUCTION WAS PASSED BY THE U.S. SENATE IN 1978 AND IS CURRENTLY UNDER CONSIDERATION BY THE HOUSE OF REPRESENTATIVES. IN 1974, THE CANADIAN CONFERENCE ON UNIFORM LAWS ADOPTED THE EXTRAPROVINCIAL CUSTODY ORDERS ENFORCEMENT ACT, WHICH IS DESIGNED TO CURB JURISDICTIONAL CONFLICTS AND DOES NOT DEPEND ON RECIPROCAL LEGISLATION AMONG PROVINCES. EIGHT PROVINCES HAVE ENACTED THE MODEL ACT. IN ADDITION, THE CANADIAN MINISTER OF JUSTICE HAS INTRODUCED A LAW WHICH CONTAINS SEVERAL CHANGES FROM SECTION 250. IT IS CONCLUDED THAT LEGISLATIVE SOLUTIONS ARE NECESSARY TO MEET THE PROBLEM OF CHILD ABDUCTION. IN THE ABSENCE OF CIVIL SOLUTIONS, THE CRIMINAL LAW PROPOSAL REPRESENTS A TENTATIVE SOLUTION. LAWYERS, FAMILY COUNSELORS, AND OTHERS SHOULD EXAMINE THE LAW'S MERITS, EXPECIALLY THE QUESTION OF WHETHER ABDUCTION BY PARENTS SHOULD BE CHARACTERIZED AS CRIMINAL CONDUCT. FOOTNOTES ARE INCLUDED. (CFW)