Enforcing Parenting, Custody, Access or Contact Orders
The Family Law Act, in force in Manitoba July 1, 2023, replaces the concepts of “custody” and “access” under The Family Maintenance Act with “parenting time” and “decision-making responsibilities”. Instead of making a custody order, the court may make a “parenting order” to allocate parenting time and decision-making responsibilities between the parents. The Family Law Act also replaces the authority for a court to make an access order permitting a family member other than a parent (such as a grandparent) or a non-family member to have contact with a child with a “contact order”.
Whether a “custody order” or “access order” has been made before The Family Law Act came into force or a “parenting order” or “contact order” has been made under The Family Law Act, the terms of the court order are in effect unless the court orders otherwise. If circumstances arise that require a person to seek help to enforce the terms of the order, there may be family court options available, and in extreme situations criminal charges may apply.
How can a parenting plan be enforced?
Whether a parenting plan is a written agreement or part of a court order, the intent and goal is to have a stable plan for as long as it is working for the children and the parents. If problems arise, you can first go to the person you specified in your plan as someone who could help resolve your dispute. Ideally, both parents will go together with the goal of working out the problem. Discuss possible adjustments to improve the plan. If that doesn’t work, parents can discuss the problem with their lawyers.
If parents decide to take the matter to court, it is important to follow the plan whenever possible, until the court makes a change. Sometimes, the court will request more information, in the form of a family evaluation, to help make a decision that is in the best interests of the children.
How can civil remedies through family court proceedings help?
In most cases where a person is not following a parenting, custody, access or contact order, the person seeking to enforce the order should exhaust their civil (family court) remedies before criminal charges may be considered.
How can Manitoba’s Child Custody Enforcement Act help?
The Child Custody Enforcement Act can help a person enforce a parenting, custody, access or contact order where the child is under 18 years of age and present in Manitoba. The Act applies to Manitoba court orders, as well as orders from other parts of Canada or other countries, as long as the child had a “real and substantial connection” with that place when the order was made and the order clearly states the person’s rights to exercise the time or contact with a child. For example, an order that allocates parenting time or access to a parent must state clearly when the parenting time or access is to occur. If an order contains general terms (such as parenting time or access as the parents may agree) the parent seeking enforcement of the terms of the order may need to apply to vary the order to include specific periods of parenting time.
If the child is still in Manitoba, or has been brought to Manitoba, a person entitled to parenting time, custody, access or contact under an order can ask the court for an enforcement order. The enforcement order may require information about the location of the child to be provided to the court, or require the police to help the parent get the child back from the other parent or help the parent exercise parenting or access times set out in the order. If parenting time, access, or contact is being denied or is not being exercised, the court may order the parent who is not obeying the order to pay compensation to the other parent for any costs they had as a result of access being denied or not exercised (e.g., for childcare). The court may impose a fine or jail sentence, or both.
The court may refuse to enforce a parenting, custody, access, or contact order if there is a concern that doing so would cause the child serious harm.
What are other Civil Remedies?
When a parent takes a child away from the parent given parenting time or custody in a court order, or denies court ordered contact or access, contempt proceedings may also be started to bring the parent who is not complying with the order before the court that made the order. Contempt proceedings may be brought any time a person disobeys a parenting, custody, contact or access order. Specific requirements must be met. The court may order additional time with the child or, in some cases, impose a fine or jail sentence, or both, if satisfied the order has been disobeyed.
If a Manitoba child has been taken to another province, civil court proceedings to enforce the parenting, custody, contact or access order and have the child returned must be taken in the other province. Like Manitoba, other provinces have legislation that parents can use to try to enforce these types of orders. Usually, parents must hire their own lawyers to enforce these types of orders in another province. In most provinces, the court can refuse to enforce the order if satisfied that doing so would cause the child to suffer serious harm, or if satisfied that the child had no real connection with Manitoba when the order was made because of the length of time he or she had been living elsewhere.
What is parental child abduction?
If a parent (or guardian or other person with “lawful care or charge of a child “) takes or keeps a child under 14 years of age away from the other parent without the other’s consent, that person may be charged with parental child abduction under section 282 or 283 of the Criminal Code of Canada. It doesn’t matter if there is a Canadian custody order or parenting order. Special consent from Manitoba Justice must be given before a parental child abduction charge can be laid where there is no Canadian custody order or parenting order.
There are a number of situations where a charge of abduction may be laid, even if there is no Canadian custody or parenting order:
- The parents and child have been living together and suddenly one parent takes the child out of Manitoba without the other’s consent, intending to deprive the other of their rights as a parent.
- The parents are separated and previously agreed that their child will live with one of them. Unless the parent who has been living with the child consents, the other parent cannot later decide to keep or take the child away, unless they get a court order.
- There is a foreign custody or parenting order not being complied with.
When the court has ordered that one parent has custody or parenting time of a child and the other parent takes away or keeps the child without the consent of the parent with custody or parenting time, that parent may be charged with abduction. A charge may also be laid if the parents have joint custody or joint parental responsibilities and one parent takes away or keeps the child without the consent of the other parent.
A parent charged with abduction may have a defence to the charge if the action was taken to protect the child or the parent from immediate danger, or if the other parent agreed they could take or keep the child. It is not a defence to a charge of parental child abduction to say the child wanted to go or stay with the abducting parent.
Parents who feel ongoing custody or parenting arrangements no longer meet their child’s needs must ask the court to make a custody or parenting order or change the existing order if they cannot agree on a new arrangement. Where a custody or parenting order exists, it is best to have a new, changed order prepared, even if parents agree to a new arrangement.
Where an abduction charge is laid, a Canada-wide warrant may be issued for the arrest of the abducting parent. This means the parent can be arrested anywhere in Canada and returned to Manitoba to face the criminal charge. If convicted of the charge of parental child abduction, a parent may be imprisoned for up to 10 years.
As is the case with other criminal charges, whether or not charges are laid depends on the particular fact situation.
The laying of criminal charges is not a remedy that necessarily results in return of the child to the complainant parent. That parent may still need to obtain an order from the civil court.
How can the police help?
While it is generally not appropriate to involve law enforcement in parenting/custody/access disputes, in certain serious situations where a child has been taken away by one parent without the other parent’s knowledge or consent, the police and/or a lawyer may need to be contacted immediately. In Winnipeg, contact your local police division or the Winnipeg Police Service Communications Centre at 204-986-6222 and seek advice from the duty officer. In an emergency, call 911.
Outside Winnipeg, parents should contact the local municipal police service or RCMP detachment for assistance in abduction cases.
Whether or not it is a situation where parental child abduction charges are possible or appropriate, if a parent does not know the whereabouts of their child the parent may report this to the police and seek their assistance to locate the child and check on the child’s well being. The police may also speak to the other parent if the child is with them.
What if my child has been abducted from Canada?
If a parent abducts a child from Canada (or to Canada from another country) an international treaty called The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (The Hague Abduction Convention) may be of assistance. The treaty allows parents with parenting arrangement rights (whether or not there is an order) to request the return of their children from another country.
The Hague Abduction Convention requires that children wrongfully removed from the country of their residence, or wrongfully kept in another country when the left-behind parent has a right of parenting time, be promptly returned to their home country. The Hague Convention applies to children under 16 years of age.
There are some limited exceptions to the requirements in The Hague Abduction Convention to return children, such as if the left-behind parent agreed the child could be taken to or remain in the other country, the child would suffer physical or psychological harm if returned, or the child wishes to remain in the other country and is old enough to have their views considered. These exceptions have generally been very strictly interpreted by the courts.
A more difficult test applies when requests for return of a child occur more than a year after the child’s removal or retention. The court in the other country can refuse to return the child if it feels the child is now settled in the new country. For that reason, it is extremely important for a parent with a right of parenting time who wishes to request the return of the abducted child to do so at the earliest opportunity.
In some cases, a request for the return of a child can result in a parent voluntarily returning the child. In other cases, a court application in the other country may be needed. Some countries provide legal aid or other legal assistance in these cases, but in many cases, the left-behind parent may need to hire a lawyer in the other country.
The Hague Abduction Convention can also be used to request help in arranging parenting time or access when a child is in another country where the Convention is in force. The assistance that can be provided is more limited, however, and varies significantly from country to country. As with requests for return, parents may need to apply to court for an order for parenting time or access if arrangements cannot be agreed upon.
Approximately 103 countries around the world have now signed and agreed to comply with the terms of The Hague Convention, and it is in effect between Canada and 86 of these countries. The child abduction section of the website for the Permanent Bureau of The Hague Conference contains additional information about the Convention. It can be accessed at: www.hcch.net.
Each country (and in Canada, each province) has to appoint an official as Central Authority to help with the operation of the Convention and the handling of incoming and outgoing cases.
For more information about how to request a child’s return and to learn if The Hague Abduction Convention is law in the country where a child has been taken, contact Manitoba’s Central Authority at:
Family Law Section, Legal Services Branch
Manitoba Justice
1230 - 405 Broadway
Winnipeg MB R3C 3L6
Phone: 204-945-0268
Fax: 204-948-2004
Toll free: 1-800-282-8069 (Ext. 0268)
FLB@gov.mb.ca
What other services can help when a child is abducted?
Even if a child is abducted to a country that is not a party to The Hague Abduction Convention, an application to a foreign court to enforce a Manitoba court order may still result in an order for the return of the child. Parents should obtain legal information and advice as to their options from a lawyer in the country in question.
Global Affairs Canada can provide parents of abducted children with a range of assistance, including:
- names of lawyers and information on the legal system in the other country
- certification of documents
- ascertaining the welfare of the child
- obtaining passport and visa information
- reporting on the status of court proceedings
They have published an information booklet International Child Abductions: A Guidebook for Left-Behind Parents and can be contacted at:
Consular Services
Global Affairs Canada
Another organization that can help parents when a child is abducted is MissingKids.ca. They offer families support in finding their missing children and provide educational materials to help prevent children from going missing. For more details, contact: