Can My Ex Kidnap My Child? Clearing Up Common Misconceptions in Family Law

Recently, I had an interaction that brought a common but critical misunderstanding in Canadian family law into sharp focus. It wasn’t even with my clients—but the situation stayed with me because it reflects something I see all the time: a belief that one parent can "steal" the children from the other. That belief can drive fear, conflict, and even risky decisions.

Here’s what happened.

A father, we'll call him Jamie, had reached out to me off and on, trying to explore mediation with his ex-partner, Megan. They were never married but shared children and a common-law history. Megan had been reluctant to pursue mediation and often changed her mind last-minute when it came to Jamie's parenting time. Then, when she moved 45 minutes away without any formal agreement, things got more complicated.

Now she’s asking Jamie to sign off so their child can start school in her new district. He’s understandably hesitant. He feels like his voice hasn’t mattered much in decisions that deeply affect his kids and his ability to be an active father.

Can My Ex Kidnap My Child Without a Custody Agreement?

When I finally got a chance to speak with Megan about it, I didn’t realize that her mother was on the line - their voices were so similar I didn’t catch that I was talking to two people on the other side. What I did catch was a repeated phrase: "He's going to steal the kids. He's going to kidnap them."

This fear, while real and emotionally loaded, is often rooted in misunderstanding. Here’s the truth: in the absence of a parenting plan or court order, both parents have equal parenting rights under Canadian family law. That means Jamie has just as much right to be with his children as Megan does.

So if you're wondering, "can my ex kidnap my child?" the answer is almost always no - not in the legal sense. Without a court order or agreement in place, it's not considered kidnapping if one parent keeps the children longer than expected. It may be unfair, and it may escalate conflict, but it isn’t abduction under the law.

Mothers are not automatically granted more authority. And while it might feel safer to avoid formal agreements or court involvement, the lack of clarity can actually create more risk, not less.

Why Agreements Matter

Some parents think that if there’s no court order, they can simply make all the decisions on their own. But this approach often backfires.

For example, if Jamie decided not to return the children after a visit, simply because there's no agreement in place, it would not be considered kidnapping under the law. Would it escalate the conflict? Certainly. But legally, both parents still have equal rights to parenting time.

On the flip side, Megan's decision to move the children away without Jamie's agreement could eventually result in a judge ordering her to move back or granting Jamie primary parenting time if she refuses. The courts do take relocation seriously, especially when it disrupts the children's relationship with the other parent.

Legal and Emotional Clarity Go Hand in Hand

It’s important for co-parents to understand that clear parenting agreements or court orders don’t just protect one parent from the other. They protect the children’s right to meaningful relationships with both parents. And they provide a structure that reduces fear-based decisions.

When fears like "he's going to steal the kids" or "can my ex kidnap my child?" are voiced without legal understanding, they can fuel unnecessary conflict. They can also distract from what really matters: creating a stable, secure parenting arrangement that puts the children first.

A Story That Could Be Avoided

What struck me most in this situation is how preventable it all was. If Megan and Jamie had sat down to create a parenting agreement early on, none of this would be happening. There would be no guesswork about schooling, no last-minute changes in parenting time, and no deep fears about kidnapping. There would be clarity. Stability. Respect.

I often tell parents this: when you avoid a parenting agreement because you think it gives you more control, you’re actually putting yourself and your kids in a more vulnerable position.

Next Steps: Protect What Matters Most

If you're co-parenting without a written agreement or court order, it may feel easier for now, but it's a fragile peace. Mediation can help you build a parenting plan that reflects both your rights and your children's best interests.

Contact me today to find out more about the process of creating a legal parenting plan with your ex and ensure that you avoid the situation the Megan and Jamie found themselves in.