1. Can My Ex Keep the Children Past Their Parenting Time?

2. What If We Only Have an Informal Parenting Schedule?

3. Is Being Late the Same as Withholding the Children?

4. What Should I Do If My Ex Keeps Returning the Children Late?

5. What If My Ex Says the Children Wanted to Stay Longer?

6. What If My Ex Says They Are Entitled to More Time?

7. Should I Keep the Children Longer Next Time to Make Up for It?

8. Can I Get Make-Up Parenting Time?

9. What If My Ex Refuses to Return the Children?

10. What If This Happens Repeatedly?

11. What Will the Court Consider?

12. When Should You Speak With a Family Lawyer?

13. How Bridgestone Law Can Help

    
    

Introduction

A parenting schedule is supposed to provide children and parents with consistency. When your former partner repeatedly keeps the children beyond the agreed return time, that consistency can quickly disappear.

Perhaps the children are supposed to return Sunday evening, but your ex regularly brings them back Monday morning. Maybe a one-hour delay gradually becomes several hours. In more serious situations, a parent may simply announce that the children will remain with them for additional days.

Occasional delays happen. Traffic, weather, illness and unexpected events can interfere with even the best parenting arrangements.

The concern arises when keeping the children longer becomes repeated, intentional or significantly different from the parenting schedule.

In Alberta, what you can do depends on whether your parenting arrangement is contained in a court order, written agreement or informal arrangement, why the children are being kept longer, and whether there are any genuine safety concerns.

Where the federal Divorce Act applies, parenting time may specifically be allocated according to a schedule, and parenting time must be exercised consistently with the child's best interests. Stability, the child's relationships with each parent, and each parent's willingness to support the child's relationship with the other parent are among the factors the Court considers.

Can My Ex Keep the Children Past Their Parenting Time?

If a court order establishes specific parenting times, the starting point is the order.

For example, if an order provides that the children will be with one parent from Friday after school until Sunday at 6:00 p.m., one parent should not ordinarily treat Sunday evening as an optional return time.

Parents can certainly agree to changes.

You might agree that the children can stay an extra night for a family celebration, vacation or special event. Separated parents frequently make reasonable adjustments without returning to court.

The key distinction is between a change made by agreement and a change imposed by one parent.

A parent should not generally assume that because they want additional time, they can simply extend their parenting time and reduce the other parent's time.

What If We Only Have an Informal Parenting Schedule?

Without a written agreement or court order, enforcement can be more complicated.

Many separated parents initially operate according to informal arrangements. They may agree by text message that the children will spend alternating weekends with one parent and return Sunday evenings.

If that arrangement has been consistently followed, its history can still be important if a dispute later develops.

However, repeated disagreements may indicate that the family would benefit from a clearer written parenting arrangement or court order setting out:

• parenting days;

• exchange times;

• exchange locations;

• holiday schedules;

• vacation arrangements; and

• procedures for requesting changes.

Clear terms can reduce disagreements about what was actually agreed upon.

Is Being Late the Same as Withholding the Children?

Not necessarily.

Context matters.

A parent arriving 20 minutes late because of unexpected traffic is very different from a parent deliberately keeping the children overnight despite being told that the other parent does not agree.

Before deciding how to respond, consider:

How long are the children being kept?

Occasional minor delays may require communication rather than legal intervention.

How frequently is it happening?

Repeated late returns may demonstrate a pattern.

Why is it happening?

An emergency is different from intentionally disregarding the schedule.

Is parenting time actually being lost?

If repeated extensions substantially reduce the other parent's parenting time, the issue becomes more significant.

What does the order or agreement say?

Precise exchange times are easier to identify and address than vague arrangements.

The seriousness of the problem usually depends on the circumstances rather than one isolated late exchange.

What Should I Do If My Ex Keeps Returning the Children Late?

Review Your Parenting Order or Agreement

Read the exact wording of your parenting arrangement.

Determine whether it specifies:

• return times;

• pickup times;

• exchange locations;

• responsibility for transportation;

• holiday exceptions; and

• how schedule changes must be agreed upon.

Do not rely only on your recollection of the arrangement.

Communicate Clearly in Writing

If the problem continues, communicate your concern calmly and in writing.

Rather than sending an angry message, identify the specific issue.

For example, you might confirm that the children were scheduled to return at 6:00 p.m., that they were returned at 9:00 p.m., and that you expect the existing parenting schedule to be followed going forward.

Written communication can help establish what happened and whether you objected to the change.

Keep the focus on the parenting arrangement rather than attacking the other parent personally.

Keep a Record

If late returns become a pattern, keep a parenting calendar.

Record:

• the scheduled return time;

• the actual return time;

• any explanation provided;

• whether notice was given;

• parenting time you lost as a result; and

• relevant communications between the parents.

For example:

September 6: Children scheduled to return at 6:00 p.m. Returned at 9:15 p.m. No advance notice.

September 20: Children scheduled to return Sunday at 6:00 p.m. Other parent advised at 5:30 p.m. that the children would stay overnight and attend school from their residence Monday.

One incident may not reveal much. A detailed record over several months can show whether there is an ongoing pattern.

What If My Ex Says the Children Wanted to Stay Longer?

Children may occasionally ask to stay longer with one parent.

That does not necessarily mean the parenting schedule automatically changes.

Under the Divorce Act, a child's views and preferences are relevant to determining their best interests, with weight given according to the child's age and maturity. However, children's preferences are only one part of the analysis.

A seven-year-old wanting to stay another night because they are watching a movie is very different from a mature teenager consistently expressing concerns about the parenting arrangement.

Parents should also be careful about placing children in the position of deciding which parent's schedule will be followed.

If a child's reluctance to return becomes persistent, it may be important to understand why rather than simply allowing the existing parenting arrangement to disappear.

What If My Ex Says They Are Entitled to More Time?

Wanting additional parenting time does not, by itself, change an existing parenting order.

Under the Divorce Act, courts can allocate parenting time through a schedule. When making parenting orders, the Court considers only the child's best interests and applies the principle that a child should have as much time with each spouse as is consistent with those best interests.

That does not mean either parent is automatically entitled to a particular percentage of parenting time.

If a parent believes the current schedule should change, the parents can attempt to negotiate a different arrangement.

If they cannot agree, the appropriate solution may be an application to change the parenting order rather than one parent simply implementing a new schedule themselves.

Should I Keep the Children Longer Next Time to Make Up for It?

Retaliation can make the situation worse.

It may be tempting to think:

"You kept them three hours late, so I will keep them three hours late next weekend."

That approach can create an escalating cycle in which neither parent follows the parenting schedule.

It can also shift the dispute away from the original problem and toward the conduct of both parents.

Where an existing court order applies, the safer approach is generally to continue complying with your obligations while documenting the other parent's conduct and obtaining legal advice about appropriate remedies.

Can I Get Make-Up Parenting Time?

Depending on the circumstances, make-up parenting time may be an appropriate solution when one parent's conduct has caused the other parent to lose scheduled time.

Sometimes parents can arrange this themselves.

For example, if a child unexpectedly remains with one parent for an additional night, the parents might agree that the other parent will receive an additional overnight the following week.

Where parenting time is repeatedly interfered with and an agreement cannot be reached, legal remedies may need to be considered.

Alberta's Family Law Act contains specific provisions concerning the enforcement of time with a child, including sections 38 to 45. The appropriate remedy depends on the applicable order, legislation and circumstances.

What If My Ex Refuses to Return the Children?

There is an important difference between being late and refusing to return a child at all.

Suppose an order requires the children to return Sunday evening. The other parent sends a message saying:

"They are staying with me. I will decide when they come back."

That situation should be taken more seriously than an ordinary late exchange.

Do not assume, however, that every parenting dispute should automatically involve police.

The appropriate response depends on the wording of the parenting order, the circumstances of the children, whether their whereabouts are known, whether there is a safety concern, and the nature of the refusal.

Obtaining prompt family-law advice can help determine whether correspondence, negotiation, an enforcement application or more urgent intervention is appropriate.

If you believe a child is in immediate danger, contact the appropriate emergency authorities.

What If This Happens Repeatedly?

Patterns matter.

Consider parents with an order requiring their children to return to their mother every Sunday at 6:00 p.m.

During the first few months, exchanges happen on time.

The father then begins returning the children at 8:00 or 9:00 p.m. When the mother objects, he says the children were having fun and did not want to leave.

Eventually he begins keeping them overnight and taking them directly to school Monday morning.

At that point, the issue is no longer simply occasional lateness. The practical parenting arrangement is being changed without agreement.

The mother might document the missed parenting time, communicate her objection clearly and obtain legal advice about enforcing or clarifying the existing parenting order.

What Will the Court Consider?

Parenting cases are not decided simply by determining which parent is more frustrated with the other.

The central consideration is the best interests of the child.

Under the Divorce Act, relevant considerations include the child's need for stability, relationships with each parent, history of care, plans for the child's care, the parents' abilities to communicate and cooperate, and each parent's willingness to support the child's relationship with the other parent. The child's physical, emotional and psychological safety, security and well-being receive primary consideration.

Evidence of repeated interference with an established parenting arrangement may therefore be relevant, but the circumstances surrounding that conduct also matter.

When Should You Speak With a Family Lawyer?

Consider seeking legal advice when:

• the children are repeatedly returned significantly late;

• overnight parenting time is being extended without your agreement;

• your ex refuses to return the children;

• substantial parenting time is being lost;

• an existing court order is repeatedly disregarded;

• your ex says they are implementing a new schedule regardless of whether you agree;

• the children are being placed in the middle of the disagreement;

• you need to enforce or clarify an existing parenting order; or

• there are concerns about the children's safety.

A lawyer may first recommend communication, negotiation or dispute resolution rather than court proceedings.

Where the conduct continues, however, a court application may be appropriate.

How Bridgestone Law Can Help

When one parent repeatedly keeps the children beyond their scheduled parenting time, what appears to be a small scheduling disagreement can develop into a significant parenting dispute.

At Bridgestone Law, our Calgary family lawyers can review your parenting order or agreement, assess the history of the parenting arrangement and help determine the appropriate next steps.

Depending on the circumstances, we can assist with:

• communicating with the other parent or their lawyer;

• negotiating clearer exchange arrangements;

• addressing repeated late or missed exchanges;

• seeking make-up parenting time where appropriate;

• formalizing an informal parenting arrangement;

• applying to enforce or clarify a parenting order;

• responding to an application to change parenting time; and

• seeking court intervention where necessary.

If your former partner repeatedly keeps the children longer than agreed, addressing the problem early can help prevent occasional deviations from developing into a completely different parenting arrangement.