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Beware to those of you contravening a court-ordered custody judgment…you may be looking at….incarceration?

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Family law

One of the most contentious issues when the time comes for a couple to part ways regards the custody and access rights for their minor children.

In fact, it is not uncommon for some parents, unsatisfied with their judgment, to try to ‘punish’ the other parent by going against what was ordered by the court.

However, although it might seem mundane, is very important that the court judgment be respected.

Disregarding the Court Judgment Could Get You in Serious Trouble

Some may not be aware of the fact that this type of ‘civil matter’ is foreseen by the Canadian Criminal Code. Indeed, our Criminal Code contains sections apropos the consequences of non-compliance with Court judgments, in regard to children’s custody and access rights. In fact, sections 282 and 283 of the Criminal Code provide the following:

282. (1) Everyone 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.

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

In other words, should a person deprive a parent from the access to their child under 14 years of age, he or she could be found guilty of abduction.

That being said, following such wrongdoing, a formal complaint will need to be communicated to the police against that person. Following the said complaint, the matter will then fall into the Crown prosecutor’s hands, who will decide whether or not to authorize the complaint and pursue with the judicial process. Like any other criminal matter, the burden of proof imposed on the Crown prosecutor - to obtain a conviction- will be that of “beyond a reasonable doubt.”

Hence, the Criminal Code provides for a maximum of 10 years of potential incarceration for such offenses. In practice, however, it is rather unlikely for such charges to be made and retained against a parent. Nonetheless, the Criminal Code does foresee this possibility and to the extent that all conditions are met, the Attorney General could certainly decide to prosecute for such wrongdoing.

Sonia Rotondo, Lawyer
Alepin Gauthier avocats inc

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