Right of First Refusal British Columbia

In British Columbia family law, a right of first refusal is a clause in a parental agreement or court order that requires the custodial parent to offer the other parent an opportunity to care for the child before leaving the child with any third party, such as a babysitter or grandparent.

What age can a child refuse to see a parent in BC?

British Columbia's Family Law Act does not define an age at which a child can decide which parent to live with. If your separation or divorce agreement contains a "Right of First Refusal," the custodial parent must ask the child's non-custodial parent to care for the child before asking anyone else, including family members or a babysitter.

The rule applies to both planned and unplanned situations, meaning if you cannot care for the child because of a doctor's appointment, date, vacation, work, or other reasons, you must ask the child's other parent to provide care.

Quick take: BC Right of First Refusal

• A Right of First Refusal clause is not mandatory in British Columbia.
• The court may include a Right of First Refusal in a parenting order or parenting arrangement if it is in the child's best interests.
• If the other parent or a step-parent violates a parenting agreement or order, you can apply to the court to enforce it. The court's ordinary remedies are civil, and an application over a denial has to be made within 12 months of the denial.
• Jail and a police order to apprehend the child sit in a separate provision, section 231, and are reserved for cases where nothing else will secure compliance.
• A denial of parenting time is not wrongful where the guardian reasonably believes there is family violence or impairment by drugs or alcohol, or where a practitioner has certified the child's illness.
• Reaching the 40% shared-parenting threshold can change how your child support is calculated.

What is the Right of First Refusal in British Columbia, and how does it work?

During a separation or divorce in British Columbia, the province's Family Law Act and Canada's federal Divorce Act allow parents to create a parenting agreement to care for the children from the relationship. If the parents cannot reach an agreement, the court will decide parenting time and who the child or children live with.

If included in your parenting agreement or court order, a Right of First Refusal clause requires that if one parent is unavailable to care for the child, that parent must offer the other parent an opportunity to look after the child.

Consequently, you may only leave the child in the care of a third party, such as a nanny, grandparent, step-parent, or family member, if the other parent is also unable to provide care.

Reasons to include a Right of First Refusal in your parental agreement

A Right of First Refusal allows the non-custodial parent to spend more time with the child. If you are paying child support, more parenting time can also matter to the calculation. Under section 9 of the Federal Child Support Guidelines, if each spouse exercises not less than 40% of parenting time with a child over the course of a year, the support amount must be determined by taking into account the amounts set out in the applicable tables for each spouse, the increased costs of shared parenting time arrangements, and the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Section 9 does not set out a formula, and crossing 40% does not automatically lower anyone's obligation. It changes the method, and the result turns on those three factors. For a full walkthrough of how support is calculated in the province, see our guide to British Columbia child support laws.

Another benefit is that you get to spend more time with the child.

The problem is the Right of First Refusal clause relies on good communication between the parents. If good communication does not exist, distrust may emerge.

If the parents go to court, the judge will decide whether to include a Right of First Refusal based on the following factors:

• Transportation requirements and how far the parents live from each other.
• How the parents will notify each other (the notification procedure).
• The child care requirements and length of time required to invoke the Right of First Refusal. Typically a day, week, or month, though some agreements may require you to inform the other parent if you are unavailable for even a few hours.

What to remember

• An out-of-court parenting agreement becomes enforceable once you file it with the court.
• Including a Right of First Refusal clause in your parenting agreement is not mandatory.
• If the court finds that including a Right of First Refusal clause is in the child's best interests, the judge will include it.

Section 43 of British Columbia's Family Law Act states, in part, quote:

"If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l), the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one or more of those responsibilities on that guardian's behalf while the guardian is unable to do so."

What if the custodial parent denies you the Right of First Refusal in British Columbia?

Section 44 of British Columbia's Family Law Act does not require a parenting agreement, and it does not require any particular clause in one. It is permissive: two or more of a child's guardians may make an agreement respecting one or more of the following. (1) The allocation of parental responsibilities.

(2) Parenting time. (3) The implementation of the agreement.

(4) The means for resolving disputes respecting the agreement.

Where the parents cannot agree, section 45 is the provision that lets a court step in. On application by a guardian, a court may make an order respecting those same four subjects, including parenting time and the implementation of the order. That is the route by which a Right of First Refusal term ends up in a court order rather than a private agreement.

Section 44 goes on to make a filed agreement enforceable, and to let the court displace it. The statute reads in part, quote:

"A written agreement respecting parenting arrangements that is filed in the court is enforceable under this Act as if it were an order of the court. On application by a party, the court must set aside or replace with an order made under this Division all or part of an agreement respecting parenting arrangements if satisfied that the agreement is not in the best interests of the child."

Consequently, if the other parent, or a step-parent, denies you the right to care for the child, you should review your parenting agreement. What does the "what happens if one parent cannot care for the child" clause say?

If the other parent or a step-parent violates the agreement, you can enforce the Right of First Refusal clause by applying to the court. Routine denial disputes are handled through the court process described below rather than by police.

What the court can order for a wrongful denial

Section 61 of the Family Law Act sets a deadline before it sets a remedy. An application may be made only by a person entitled under an agreement or order to parenting time or contact, and only within 12 months after that person was denied parenting time or contact.

If the court is satisfied the applicant was wrongfully denied, section 61(2) lets it order one or more of the following:

• Require the parties to participate in family dispute resolution.
• Require one or more parties, or the child, to attend counselling, specified services or programs. The child may be required to attend without the guardian's consent.
• Specify a period during which the applicant may exercise compensatory parenting time or contact.
• Require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred as a result of the denial, including travel expenses, lost wages and child care expenses.
• Require that the transfer of the child from one party to another be supervised by a person named in the order.
• Where the court is satisfied the guardian may not comply, order the guardian to give security in any form the court directs, or to report to the court or to a person the court names.
• Require the guardian to pay an amount not exceeding $5,000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or a fine not exceeding $5,000.

Can I call the police if my ex-will not let me see my child in British Columbia?

If you have a court order and the other parent denies you contact without a valid reason under section 62, that is a violation of the order. In practice, the Family Law Act directs these disputes to the court rather than to police enforcement, and sections 61 to 63 do not themselves authorize police involvement.

A separate provision does. Section 231 of the Family Law Act, headed Extraordinary remedies, provides:

"(4) If satisfied under section 61 [denial of parenting time or contact] that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, a court may make an order requiring a police officer to apprehend the child and take the child to the person."

So the police-apprehension order is real, it is statutory, and it is tied directly to a section 61 finding. It is also uncommon. British Columbia's family justice guidance puts it this way: "Most of the time, remedies like imprisonment of the parent who denies parenting time or contact or ordering police to take the child to the parent for parenting time or contact are not available because such extraordinary remedies are almost never in the child's best interest."

The practical point for a reader is that calling 911 over a missed Right of First Refusal will not produce that order. Police acting on their own initiative deal with genuine emergencies, such as a real risk to the child's safety or an unlawful attempt to remove the child from the province. An order under section 231(4) comes from a judge, after an application, on the record of a wrongful denial.

Under section 62 of the Family Law Act, a guardian's denial of parenting time or contact is not considered wrongful if:

• The guardian reasonably believed the child might suffer family violence if the parenting time or contact were exercised.
• The guardian reasonably believed the other parent was impaired by drugs or alcohol at the time the parenting time or contact was to be exercised.
• The child was ill and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate for the parenting time or contact to go ahead.
• In the 12 months before the denial, the other parent repeatedly failed, without reasonable notice or excuse, to exercise their own parenting time or contact with the child.
• The other parent said in advance that the parenting time or contact would not be exercised, and then did not give reasonable notice of a change of mind.
• There are other circumstances the court considers sufficient justification for the denial.

Note that section 63 of British Columbia's Family Law Act reads:

"If a person fails repeatedly to exercise the parenting time or contact with the child to which the person is entitled under an agreement or order, whether or not reasonable notice was given, the court on application may make an order to do one or more of the following: (a) require one or more of the things described in section 61 (2) (a), (b) or (e); (b) require the person to reimburse any other person for expenses reasonably and necessarily incurred by the other person as a result of the failure to exercise the parenting time or contact with the child, including travel expenses, lost wages and child care expenses; (c) if the court is satisfied that the person who failed to exercise the parenting time or contact with the child may not comply with an order under this section, order that person to do one or more of the things described in section 61 (2) (f)."

Consequently, if either parent disobeys a court order, the other may go to court to enforce it.

What happens if the other parent is unreachable?

If you make a reasonable effort to contact the other parent to no avail, you may ask a third party, such as a babysitter or family member, to care for the child.

What happens if you do not obey a parenting agreement or order in British Columbia?

If you file a parenting agreement with the court, the agreement becomes binding and enforceable, just like a parenting order or support order. If either parent refuses to obey the order, the other may go to court and enforce it.

To avoid going to court, you may find a solution through negotiation or mediation.

Can you go to jail for denying parenting time in British Columbia?

Rarely, and not under the sections that deal with parenting time directly. Sections 61 to 63 of the Family Law Act give the court a menu of civil remedies for denied or unexercised parenting time: family dispute resolution, counselling, makeup parenting time, reimbursement of expenses, supervised exchanges, security or reporting conditions, and payment or a fine of up to $5,000. None of those is jail.

Imprisonment comes from section 231, the same Extraordinary remedies provision that carries the police-apprehension power. It is gated. It applies only where a person fails to comply with an order made under the Act and "the court is satisfied that no other order under this Act will be sufficient to secure the person's compliance" (section 231(1)). Where that test is met, the court "may make an order that a person be imprisoned for a term of no more than 30 days" (section 231(2)).

Section 231(3) adds procedural protection. The person must first be given a reasonable opportunity to explain the non-compliance and show why an order under the section should not be made. The court may issue a warrant for the person's arrest for the purpose of bringing them before the court to do so. Imprisonment does not discharge any duty the person owes under the order, so serving the time does not erase the obligation.

That opportunity to explain is the practical reason enforcement often begins with a hearing at which the parent has to account for the failure rather than with any penalty.

British Columbia's family justice guidance is candid about how often this happens: "Most of the time, remedies like imprisonment of the parent who denies parenting time or contact or ordering police to take the child to the parent for parenting time or contact are not available because such extraordinary remedies are almost never in the child's best interest."

Treat a 30-day term as a last resort aimed at a parent who flatly and repeatedly refuses to comply with a court order at all, not as an ordinary consequence of one missed Right of First Refusal.

At what age can a child refuse to see a parent in British Columbia?

As mentioned, British Columbia's Family Law Act does not specify an age at which a child can refuse to live with or see a parent. Based on previous rulings, the age and maturity of the child determine whether the court will take their views into consideration.

When a child's views are relevant, the court can order an assessment under section 211 of the Family Law Act, often carried out by a family justice counsellor, a social worker, or another person the court approves. Depending on what is needed, this can be a shorter Views of the Child report focused on the child's own wishes, or a fuller assessment that also looks at each parent's ability to meet the child's needs. British Columbia's Family Justice Services Division can help connect families with a qualified assessor.

The judge uses the report's findings, alongside the child's age and maturity, to make a decision that is in the child's best interests.

How to get out of a Right of First Refusal in British Columbia

If your parenting agreement is causing problems at home, you may petition the court for changes, or you may use alternative means such as mediation or negotiation to make changes to the agreement.

We recommend consulting with your lawyer.

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