Right of First Refusal Clauses in Ontario Parenting Orders

A right of first refusal clause says that if one parent cannot care for the child during their parenting time, they must first offer that time to the other parent before turning to a babysitter or relative. Some parents like the idea. Others find it creates friction.

This article explains how such a clause can fit into an Ontario parenting plan or order, what to weigh before including one, and what the wording needs to cover.

What the clause does and where it comes from

A right of first refusal is a term that parents can build into a parenting plan or agreement, or that a court can include in an order. For divorcing parents, a parenting order under the Divorce Act may provide for any other matter the court considers appropriate, and may impose any terms, conditions or restrictions the court considers appropriate, so a court can write tailored conditions into the order. Parents who were never married, or who are not divorcing, cannot get a Divorce Act order and need a parenting order under Ontario's Children's Law Reform Act instead. How that Act treats this kind of clause depends on your situation, so it is worth confirming with a lawyer.

Under the Divorce Act, unless the court orders otherwise, the person exercising parenting time has exclusive authority to make day-to-day decisions affecting the child during that time. A right of first refusal limits that freedom in one area: who looks after the child when the parent is away.

Parenting plans can be included in a separation agreement or in a court order, which makes them easier to enforce than an informal plan.

Why parents include one

The court gives effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. A right of first refusal can be one way to put that into practice when a parent is unavailable. It may also reflect each parent's willingness to support the child's relationship with the other parent, which is a best-interests factor.

It can suit families where one parent works shifts or irregular hours. The Parenting Plan Checklist notes that plans should be flexible enough to be realistic and allow for unforeseen events such as illness, which is relevant to shift workers and parents with irregular schedules.

Drawbacks to weigh

A clause that sounds fair can cause problems in daily life. Consider these points:

• Conflict: constant offers and refusals can increase contact between parents who already struggle to communicate. Once a parenting order is made, you must comply with it until it is no longer in effect, and during a court proceeding you must protect the child from conflict arising from that proceeding to the best of your ability.
• Disruption: moving a child between homes for short periods may not suit the child's age and stage of development, including the need for stability.
• Control: it can feel like the other parent is monitoring your parenting time, even if that is not the intention.
• Safety: where there are safety concerns, a court may refuse a parent parenting time if there is a fear the parent may harm the children or not return them. A clause giving that parent extra time may not be appropriate, and supervision may be an option instead.
• Vagueness: unclear wording about when the clause applies leads to disputes.

What the wording should cover

The points below are ideas to discuss with the other parent, and the wording that suits your family may differ. The points below are ideas to discuss, not text to copy. An illustration of the general idea: if a parent will be unable to care for the child during their parenting time, that parent will first offer the other parent the chance to care for the child. Strong drafting usually addresses:

• When the clause applies, for example the length of absence, so short errands do not trigger it.
• How the offer is made (the Parenting Plan Checklist lists phone, e-mail, text, social media or video chat as communication options).
• How quickly the other parent must respond.
• Who handles transportation for the extra time.
• Whether the clause applies to overnight absences, work, travel or all of them.
• What happens if the offer is declined, including whether a family member or regular caregiver is exempt.
• A review point as the child grows, since the checklist asks parents to consider the children's ages and how the plan may change.

What to do next

Talk through whether the clause suits your child's age, your work patterns and how well you and the other parent communicate. If you agree, put it in writing in a separation agreement or ask for a consent order, since an informal plan can be difficult to enforce.

A person subject to a parenting order must comply with it, and if an order is not followed without good reason, the court can take action, including a fine or jail. A court order can only be changed by a new decision from the court, although parents can update an agreement by agreeing. Because of that, think about whether you can live with the clause long term. A family lawyer can help you draft it and confirm how it would work in your case.

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