Melissa Hawach and her four-year-old daughter are photographed at her Calgary home on Monday, May 12, 2008. Her former husband took the children to Lebanon in July 2006 in violation of Canadian custody orders.Chris Bolin/The Globe and Mail
The abduction of children by their mother or father is a serious crime deserving of serious consequences, and of a strong denunciation by the courts.
But the courts do not usually like to send first offenders to jail, especially when they are "otherwise of good character" and not a danger to reoffend. Many abducting parents receive conditional discharges. It is difficult to see why being a first-time offender should reduce a sentence, when the offence goes on for months or years.
That is what happened in September in R. v. Melville, an Ontario case involving a five-year-old taken by his mother from Toronto to Florida for 12 years, in violation of a court order. The judge in the abduction case did not believe there were extenuating circumstances of abuse. "In a system that is meant to focus on the best interests of the child, the child can be reduced to a weapon used by warring parents to bludgeon each other," wrote Mr. Justice Todd Ducharme of the Ontario Superior Court, stressing the seriousness of the crime. But the Crown asked only for six months in prison, and that is what Judge Ducharme gave the mother.
It is also what happened in November in R. v. Neundorf, also in Ontario, in which a mother and her new husband took her two sons, in violation of a court order, to Singapore, without advising the boys' father. It was seven months before she returned. In that case, the trial judge sentenced her to a year under house arrest; being a first offender worked in the mother's favour. After she had served that term, the Court of Appeal granted her an absolute discharge, clearing her of a criminal record. Perhaps that was fair in the circumstances, but it is difficult to understand part of that court's rationale – that the mother had experienced the hardship of not being able to see her boys for more than a year, as a result of her arrest and changes to the custody terms. Wasn't that her fault?
In a B.C. case from 2008, R. v. Gill, a mother received a conditional discharge after fleeing an abusive situation and taking her two children home to India – for 10 years. Again, perhaps fair in the circumstances; but the message of deterrence, and of the need to respect court processes, was lost.
Each parental abduction turns on its facts, of course, and it would be foolish to urge that all abductors be tossed in jail, regardless of the circumstances. The maximum sentence is 10 years in jail, reflecting Parliament's view of the seriousness of parental abduction. Parental abduction is a form of child abuse, and the courts should treat it that way.