Parents are to be encouraged to comply with existing orders or agreements or to resolve disputes with the other parent, through civil processes. While the important criminal purpose of these sections governs police and Crown practice in these cases, it may also be relevant to suggest that parties consider, with their counsel, whether civil law remedies are also appropriate to their case. Even if civil law remedies are available, a separate determination of whether criminal charges should be laid is required. The discussion that follows is offered to assist police and Crowns in interpreting the custody concepts used in sections 282 and 283. Articles 3 and 5 of the Hague Convention on the Civil Aspects of International Child Abduction, which has been adopted by all Canadian jurisdictions, may be of assistance in interpreting sections 282 and 283 in custody situations.
Orders can contain different types of terminology.
The investigative agency should, however, consider making inquiries to ascertain whether the custody order is the most current custody order, that the order is still in effect and may request a copy of the order. The alleged abductor takes, entices away, conceals, detains, receives or harbors the child. There is evidence that the alleged abductor is not aware of the existence of the terms of a custody order prior to the laying of the charge. No Canadian custody order exits, but custody rights under a separation agreement or a foreign order have been violated. There has been a permanent or indefinite denial of a right of access pursuant to an agreement which provides the access parent with a significant degree of care and control over a child with or without a provision permitting the child's removal from the jurisdiction.