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Word of the Week | Unlawfully Withholding



The father had no authority in support of his submission that the section covers constructive or indirect withholding, in the form of parental alienation ... “withholding” could be done by an agent acting on behalf or for the benefit of a parent, it is not clear to ... that the influencing of a 15 or 16 year old’s mind, so that the child refuses to go to a parent, is “unlawfully withholding” the child as intended by the section. It seems ... that “unlawfully withholding” does not extend to cover influencing or alienating. Even more difficult is the notion that providing an apartment in which a child can live amounts to unlawfully withholding the child. It seems ... that it would take more than providing an alternative home for a 16 year old, so that the child does not need to be in the custody of a parent, to amount to unlawfully withholding the child. [It is inconclusive] that alienation of a child, so that the child voluntarily (albeit misguidedly or mistakenly) decides that the target parent is unworthy, untrustworthy, or dangerous, amounts in law to “unlawfully withholding” the child.

(L. (N.) v. M. (R.R.) (2016), 2016 ONSC 809, 2016 CarswellOnt 1639 (Ont. S.C.J.) at para. 81 Perkins J.)

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