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Can a mother be convicted of abducting her own children?

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In a March 2000 custody trial, the mother of 9 year old triplets had lost custody of her children to the father. The custody trial was adjourned to decide whether the mother would continue to have access visits with her 2 boys and a girl. Fearing that the Family court judge would cancel the access to her children, the mother cashed in her assets and prepared to flee with the children on her next access visit. She hid the children in her car and drove to the United States and then to Mexico, where they lived for a few months until they were found and returned to their father in Ontario.

The mother was criminally charged with 3 counts of abduction. At her criminal trial, she argued that her children would face imminent psychological and emotional harm by living with their father. The mother relied on section 285 of the Criminal Code that provides that a person cannot be found guilty of abduction if the court is satisfied that taking the children was necessary to protect them from danger of imminent harm.

A judge and jury acquitted her of all criminal charges. However, the Crown Attorney appealed this decision and, on August 26, 2003, the Ontario Court of Appeal determined that there was neither harm nor imminence in the mother’s situation.

The appellate court was concerned that anarchy and chaos would be created in family law if a Criminal court judge were to accept that a Family court judge’s decision to grant custody to one parent created a situation of imminent harm to the children. The appellate court stated that parents who are unhappy with the outcome of custody proceedings would feel entitled to ignore unfavourable court orders regarding their children.

A new criminal trial was ordered.

Steven Benmor

About the author: Steven Benmor practices Family Law in Toronto, Ontario, Canada. Visit Steven Benmor’s online Family Law Resource Center for concise answers to many more frequently asked Family law questions, feature articles on Family law topics, dozens of links to other Family law websites, and more at The information on this page is for discussion purposes only. It is by no means legal advice or even a statement of the law on this subject. Please do not rely on the accuracy or completeness of this information. Any question or concern elicited by the information on this page should be taken to a lawyer who will consider the facts of each case and the legal remedies available.