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My Ex Won’t Return My Child
Family Law
My Ex Won’t Return My Child
10 min read
My Ex Won’t Return My Child in Alberta
Introduction
When your child is supposed to be returned after parenting time and the other parent refuses to return them, it can be an extremely stressful situation. You may not know where your child is, whether you should call the police, or whether you need to make an urgent court application.
In Alberta, the steps available to you depend on the circumstances. Important factors include whether there is a parenting order, exactly what the order says, how long the child has been withheld, whether the other parent has explained the delay, and whether there are concerns that the child may be in danger or removed from Alberta or Canada.
If there is a court order setting out when your child must be returned, the other parent generally cannot simply decide not to follow it. Alberta provides court procedures for enforcing parenting time, including circumstances where a child has not been returned after a visit. These Alberta enforcement procedures can also be used for parenting-time orders made under the federal Divorce Act.
If your child has not been returned, the first priority is determining what has happened and whether the situation requires immediate action.
First, Find Out Why Your Child Has Not Been Returned
Not every late exchange requires a court application.
A parent who is 30 minutes late because of traffic is very different from a parent who tells you that they are keeping the child indefinitely.
Try to contact the other parent and determine:
Where is the child?
Is the child safe?
Why has the child not been returned?
When will the child be returned?
Is the other parent refusing to follow the parenting order?
Is there any indication that the other parent intends to leave Alberta or Canada with the child?
Whenever reasonably possible, communicate in writing. Text messages and emails can provide an important record if court involvement later becomes necessary.
If the other parent confirms that they will not return the child, refuses to disclose the child's location, stops communicating, or threatens to leave the jurisdiction, you should consider obtaining legal advice promptly.
What If I Have a Parenting Order?
Having a clear parenting order can make enforcement more straightforward.
For example, your order may state that the other parent has parenting time from Friday at 5:00 p.m. until Sunday at 6:00 p.m.
If Sunday evening arrives and the other parent deliberately refuses to return the child, the issue is no longer simply a disagreement about scheduling. There may be a failure to comply with the court order.
Alberta has a specific court process for enforcing parenting time where an existing court order describes when parenting time is to occur. Alberta also confirms that these enforcement processes apply to parenting-time orders made in Alberta, including orders made under the Divorce Act.
The federal Divorce Act similarly provides that parenting orders have legal effect throughout Canada and may be enforced according to provincial enforcement laws.
Can I Call the Police?
If you believe your child is in immediate danger, call 911.
If there is no immediate safety emergency, whether police can physically retrieve the child will depend on the circumstances and the terms of the court order.
A parenting order does not necessarily mean that police will immediately attend the other parent's home and remove the child.
However, the court can make an order directing police to locate and return a child who has not been returned following parenting time. Alberta specifically identifies police assistance as one of the remedies available in this situation.
If you contact police, keep a copy of your current parenting order available.
What Can the Court Do If My Ex Refuses to Return My Child?
Alberta courts have several enforcement options when a child is not returned as required.
Depending on the circumstances, the court may order police to locate and return the child.
The court may also order the person who failed to return the child to:
post security to encourage future compliance;
reimburse expenses caused by the failure to return the child;
pay a financial penalty for each day the child was not returned; or
face other enforcement consequences available under the legislation.
Alberta's current guidance states that the financial penalty can be up to $100 for each day the child was not returned. In serious cases, imprisonment is also identified as an available enforcement remedy.
The appropriate remedy will depend on the circumstances. An isolated misunderstanding is very different from repeatedly withholding a child or deliberately concealing the child's whereabouts.
What If My Ex Says the Child Does Not Want to Come Home?
A child's views may be relevant to parenting decisions, particularly as the child becomes older and more mature.
However, a child's statement that they do not want to return does not automatically cancel or change an existing parenting order.
If there is a court-ordered parenting schedule, parents are generally expected to follow it unless the order is changed or circumstances require immediate protective intervention.
If a child repeatedly refuses to transition between homes, it may be important to determine why. The child's age, maturity, relationship with each parent, experiences in each household and reasons for resisting the transition may all become relevant.
Depending on the circumstances, legal advice or further court involvement may be appropriate rather than allowing the parenting arrangement to change informally.
What If My Ex Claims the Child Is Not Safe With Me?
Allegations concerning a child's safety need to be taken seriously.
However, a parent should not ordinarily use a disagreement or unsupported allegation as a way to unilaterally replace a parenting order with a different arrangement.
If there is a genuine and immediate safety concern, emergency intervention may be appropriate.
If the concern is not an emergency but one parent believes the existing parenting arrangement is no longer in the child's best interests, that parent can seek a change to the parenting order through the court.
The appropriate response depends heavily on the facts, including the nature of the alleged risk and any available evidence.
What If My Ex Is Threatening to Leave Alberta With My Child?
This situation can require urgent attention.
There is an important difference between a parent being late for an exchange and a parent refusing to return a child while making plans to leave Alberta or Canada.
Keep any evidence suggesting that the other parent intends to leave, including:
text messages;
emails;
travel itineraries;
airline information;
statements about moving;
information concerning passports; and
communications from family members or other relevant individuals.
Depending on the circumstances, a court application may seek orders requiring the child's return or restricting travel or removal from a particular geographic area.
Under the Divorce Act, a parenting order can include terms and restrictions the court considers appropriate and may specifically authorize or prohibit a child's relocation.
If you believe the other parent is preparing to leave the province or country with the child contrary to an existing order, obtain legal advice promptly.
What If I Do Not Have a Parenting Order?
The situation can be more complicated when parents have been operating under an informal parenting arrangement.
If there is no court order specifying parenting time, you may not have an existing parenting order to enforce.
Alberta's guidance indicates that where there is no court order and a parent is being prevented from exercising parenting time, it may be necessary to apply for an appropriate parenting, contact, or custody and access order, depending on the circumstances.
A court order can provide certainty by establishing when the child will be with each parent and other necessary parenting terms.
If informal arrangements have repeatedly resulted in disputes about when the child must be returned, obtaining a clear parenting order may help prevent future uncertainty.
Should I Go and Get My Child Myself?
Use caution.
It may be tempting to go directly to the other parent's home and demand that your child be returned. However, confrontations between parents can escalate quickly and expose the child to further conflict.
Do not enter property unlawfully, make threats, or attempt to resolve the dispute through physical confrontation.
Instead, communicate clearly and document the refusal.
You might send a short written message confirming the return time required by the parenting order and requesting that the child be returned immediately.
If the other parent continues to refuse, speak with a family lawyer about the appropriate enforcement procedure.
If there is an immediate safety emergency, contact police.
Keep a Record of What Happened
Documentation can become very important if you need to go to court.
Keep copies of:
your current parenting order;
your parenting agreement, if applicable;
the date and time the child was supposed to be returned;
the date and time the child was actually returned;
text messages and emails;
screenshots of relevant communications;
unanswered messages or calls;
statements that the child will not be returned;
threats to leave Alberta or Canada;
information about the child's location;
police occurrence information, if applicable; and
expenses you incurred because the child was not returned.
Keep your own communications calm, factual and focused on the child.
Messages exchanged during the dispute could later become evidence in a court proceeding.
What If This Keeps Happening?
One missed return may be addressed differently from a continuing pattern.
If the other parent repeatedly keeps the child beyond their parenting time, refuses exchanges, or disregards the parenting schedule, further court intervention may be necessary.
Depending on the circumstances, you may seek enforcement of the existing order or ask that the parenting arrangements be changed.
A more detailed order might address:
precise exchange dates and times;
exchange locations;
transportation responsibilities;
school or daycare exchanges;
communication between parents;
travel arrangements;
notice requirements; and
enforcement provisions where appropriate.
The objective is to establish a parenting arrangement that is clear, workable and consistent with the child's best interests.
Can My Ex Simply Change the Parenting Schedule?
If there is an existing court order, one parent generally cannot simply rewrite the schedule because they would prefer a different arrangement.
Parents can agree between themselves to occasional changes. For example, they might agree to exchange weekends or alter a pickup time.
However, if one parent wants a permanent change and the other parent does not agree, an application to change the existing parenting order may be required.
Until the order is changed, the existing court order remains important and should be taken seriously.
What Should I Do Right Now?
If your child has not been returned:
Review your parenting order. Confirm exactly when and where the child was supposed to be returned.
Contact the other parent. Ask where the child is, whether the child is safe and when the child will be returned.
Keep your communications in writing where possible. Preserve texts, emails and other relevant evidence.
Avoid confrontation. Do not allow the situation to escalate into a physical dispute.
Consider the seriousness of the situation. A short delay is different from an outright refusal to return the child.
Contact police if there is an immediate safety emergency.
Speak with a family lawyer promptly if the child is being deliberately withheld.
Act quickly if there is a risk the child will be removed from Alberta or Canada.
How Bridgestone Law Can Help
Having another parent refuse to return your child can be frightening and frustrating. It can also be difficult to determine whether the situation requires communication between the parents, enforcement of an existing order, police assistance, or an application to the court.
Bridgestone Law assists parents in Calgary and throughout Alberta with parenting disputes and the enforcement of parenting orders.
We can review your existing parenting order, assess the circumstances surrounding the failure to return your child, communicate with the other parent or their lawyer, and advise you about the enforcement options available.
Where court intervention is necessary, we can assist with applications relating to enforcement, return of a child, police assistance, parenting arrangements and other appropriate relief.
If your child has not been returned as required, obtaining legal advice promptly can help you understand your options and determine the appropriate next step.
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