What If Your Ex Keeps Your Child and Won't Return Them in British Columbia?

When your child is not returned after a visit, the situation feels urgent and frightening. You may not know whether this is a legal problem, a police matter, or both.

This article explains how the Family Law Act in British Columbia deals with wrongful denial of parenting time, what urgent court steps exist, and what applies if a child may be taken out of the province or country. It is general information; because timing matters, speak to a lawyer quickly.

This article covers the law of British Columbia.

First, work out where you stand

Your position depends on whether you have an agreement or order. Parenting time is the time a child is with a guardian, as allocated under an agreement or order. Separation alone does not end guardianship, and each parent is a guardian both while living together and after separating, but an agreement or order made after separation, or when the parents are about to separate, can provide that a parent is not a guardian. A parent who has never lived with the child is not a guardian unless an exception applies: the parent is a parent under the s. 30 arrangements, all guardians agree in writing that the parent is a guardian, or the parent regularly cares for the child.

If you have no written arrangement, a guardian must not change settled informal arrangements without consulting the other guardians, unless consultation is unreasonable or inappropriate. A parenting agreement is binding only if made after separation, or when the parties are about to separate and it is meant to take effect on separation, and a written agreement filed in court is enforceable as if it were a court order.

If you or your child are in immediate danger, contact emergency services right away. Whether police will act on a withheld child depends on the circumstances, including what documents exist, so ask a lawyer how police are likely to treat your situation.

Urgent court applications

If you are a guardian, the court may make orders on allocation of parental responsibilities, parenting time, implementation and dispute resolution, and may require supervision of parenting time or transfers. In Provincial Court, Form 15 is the application about a priority parenting matter, and Form 29 is the application about enforcement. In Supreme Court, a family case starts with a Form F3 Notice of Family Claim.

If you have no order yet, you may need to apply for one. A person applying for guardianship may apply at the same time for a parenting order. Court procedure and urgency requests are detailed, so a lawyer can confirm the right form and court.

Remedies for wrongful denial

A person entitled under an agreement or order may apply within 12 months after a denial of parenting time or contact. The court may order:

• Family dispute resolution or counselling.
• Compensatory time with the child.
• Reimbursement of expenses.
• Supervised transfers, security or reporting.
• Payment or a fine of up to $5,000.

A denial is not wrongful in some circumstances. Examples include a reasonable belief the child might suffer family violence or that the applicant was impaired by drugs or alcohol, an ill child where a medical or nurse practitioner gave a written statement that the visit was inappropriate, repeated failure to exercise time in the previous 12 months without notice or excuse, or advance notice that time would not be exercised. The court may also find other circumstances sufficient. Expect the other parent to raise these if they apply.

If the child may be taken out of the area or abroad

A court may order that a person not remove a child from a specified geographical area. If it is satisfied that a person proposes to remove the child from BC and is unlikely to return, it may order security, surrender of passports and travel records, transfer of property to a trustee, or payment of child support to a trustee.

Applying for a child's passport is a parental responsibility, so it falls to guardians under the allocation in an agreement or order. If consent to travel is refused, a guardian can apply to court for an order deciding the issue.

A lawful move is different from keeping a child. Where a written agreement or order on parenting arrangements or contact applies, a guardian planning to relocate a child must give other guardians and contact persons at least 60 days' written notice stating the date and proposed location, although the court may exempt notice where it would risk family violence or there is no ongoing relationship. Another guardian can object by applying to court within 30 days of receiving notice, and in Provincial Court this uses Form 16. Where a child is already abroad, other countries' rules and international procedures may apply, and they depend on the destination, so get legal advice immediately.

What to do next

• Gather your agreement or order, passports, and messages showing the missed return and any explanation given.
• Record dates, times and your attempts to arrange the return.
• Stay calm and avoid confrontation or taking the child back without legal advice.
• Contact a lawyer right away about urgent applications and enforcement, given the 12-month window.
• Ask whether a Parenting After Separation certificate or exemption is needed before a Provincial Court application can proceed.

Frequently asked questions