Right of First Refusal Alberta

Under provincial laws, a child above 14 has the right to refuse to see a parent. Alberta’s Right of First Refusal clause -if included in your parental arrangement- requires that if you cannot care for your child during ordinary parenting time, you must ask the child’s other natural parent to care for the child before asking a third party such as a caregiver, family member, stepparent, or someone else.

Below is everything parents and kids need to know about Alberta’s Right of First Refusal.

• If divorcing or separating parents agree, the parenting agreement may contain a Right of First Refusal clause.
• You may alter an existing custody agreement to include a Right of First Refusal clause.
• You may enforce your custodial arrangement through a peace officer or court if a stepparent or third party denies you your Right of First Refusal.
• Your custodial agreement should contain a dispute resolution process to avoid going to court over visitation issues.
• If the dispute resolution process does not work, you may petition the court to modify your agreement or modify the agreement out of court through mediation or negotiation.
• You may terminate the other parent’s Right of First Refusal by asking the court to terminate their parental rights.
• The court may terminate parental rights if there is evidence of abuse, molestation, or if the home is an unsafe environment for the child.
• The Right of First Refusal clause is not mandatory.
• The Right of First Refusal prioritizes the child’s natural parents over third parties (the custodial parent must notify the non-custodial parent before leaving the child under someone else’s care).

What is Alberta’s Right of First Refusal?

Under Alberta’s family law act and Canada’s divorce act, divorcing or separating parents may negotiate child custody arrangements and parental arrangements out of court. During negotiations, the parents may include a “Right of First Refusal” clause in their parental arrangement.

Suppose your parental arrangement includes a Right of First Refusal clause. The custodial parent must offer the non-custodial parent an opportunity to look after a child before contacting a third party. Simplified, what that means is you must contact the other parent and find out if they are available to care for the child before you contact a babysitter, family member, or other persons.

What you must remember about Alberta’s Right of First Refusal

• You must notify the other parent if you are unable to care for the child because of work, travel, doctor’s appointments, vacations, disease, or any other reason.
• Alberta’s first refusal clause applies to both planned and last-minute situations.
• If the other parent is unable to care for the child, you may contact a third party, such as a babysitter or family member.

Can a court order include A Right of First Refusal?

Under section 32(1) of Alberta’s family law act, a parenting agreement may contain (1) An allocation of parenting time. (2) The powers, responsibilities, and entitlements of the guardians. (3) A dispute resolution process for any problems that may arise.

Section (d) reads, “Any other provision that the court considers appropriate.“ Consequently, if the court deems it necessary to include a Right of First Refusal clause, it will.

Can a stepparent block a Right of First Refusal in Alberta?

No. As mentioned, Alberta’s family law act requires parents to include a dispute resolution process in their arrangement. Consequently, if a stepparent or guardian blocks your Right of First Refusal, you should first go over your separation agreement.

If your arrangement contains a Right of Refusal Clause and your former partner refuses to allow you to care for the child, then your former partner is in violation of the agreement. First, check your custody and visitation arrangement agreement.

Your dispute resolution agreement should contain a “what happens if one parent cannot care for the child?” clause. If the clause contains clear instructions on what happens in such a situation, follow the process, or contact your attorney.

How to enforce the Right of First Refusal if a stepparent blocks access to a child

Suppose the custodial parent cannot care for the child because of hospitalization or other reason. You may contact the police to enforce your order. Remember, disobeying a court order may result in contempt of court charges.

To enforce the Right of First Refusal order, you will need:

• A certified copy of your custodial order.
• Some form of identification (recommend ID or driver’s license).

But before you contact the police or go to court, we recommend negotiating with the other parent. If the dispute resolution process contained in your custody order does not work, you may contact the police.

What is a Mandatory Right of First Refusal in Alberta?

Suppose your parental agreement contains a Mandatory Right of First Refusal. As the name suggests, you must contact the other parent before leaving the child under the custody of someone other than the parent. That can create several problems, including distrust amongst the parents, it may limit the time the child spends with other family members, and the non-custodial parent may enforce the clause.

For instance, what if you get married? Can you leave the child under the care of your new partner without telling the other parent?

Consequently, we recommend making the terms of your custodial arrangement clear.

What to remember

• A Right of First Refusal clause does not have to be mandatory.
• If you get remarried, you should consider altering restrictive custodial arrangements.
• If the other parent refuses to change the terms of your custodial arrangement, you may ask the court to make the changes.
• Refusal to obey a court order may result in contempt of court charges.
• If you are accused of contempt of court, the judge may order a show cause hearing,
• During a show cause hearing, the accused must explain their failure to obey a court order.
• Jail time is highly unlikely; however, the court may change the parent’s custodial arrangement.

How to enforce A Right of First Refusal in Alberta

If the other parent denies you the right to care for your child, review your custodial arrangement, then contact law enforcement to help you enforce the agreement. You may also file a report at the local courthouse.  

What are the benefits of including a Right of First Refusal in your custodial agreement in Alberta?

• If you want to spend more time with the child, a Right of First Refusal clause allows you to spend more time with the child outside normal visiting hours.

When can a child decide which parent to live with -in Alberta?

In Alberta, the court will consider a child’s opinions if the child is above 12. Remember, one of the factors the court must consider when designating parental agreements is “the best interests of the child.”

When the child turns 14, the minor has the right to choose which parent to stay with. That means you cannot legally force a child above 14 to live with you or visit you.

What to do if the custodial parent is abusive?

Canada’s divorce act says that parents have a legal obligation to care for and ensure their child’s safety. Consequently, if a parent creates an unsafe environment for the child, say if the parent abuses drugs, is neglectful, or fails to provide the necessities of life. The child may seek help from the non-custodial parent or the province.

Therefore, you may petition the court to change a custodial arrangement if

•  The child is above 14 and wishes to live with a non-custodial parent. Or if the child wants to spend more time with the other parent.
• If the child feels trapped in an abusive household.
• If the environment is unsafe for the child.

How to get out of a Right of First Refusal in Alberta?

You may petition the court to alter your custody and visitation arrangement, or you may make the changes out of court through negotiations or mediation.

How to negotiate a new custodial arrangement in Alberta

Instead of going to court, you may use the following alternatives.

• Home study/ custody assessment. For this option, contact a social worker and inform them of your concerns. After a home assessment, the social worker will help you find a solution.
• Mediation. The parents may work with a mediator to negotiate changes to the custodial arrangement.
• Negotiations. If you have the resources or if you qualify for legal aid, you may negotiate a parental agreement through lawyers.

What to remember

• The court considers a child’s opinion based on the maturity and age of the child. If the child is above 14, the court will consider their opinions in custody matters.
• It is not mandatory for the court to consider a child’s opinions. However, provincial and federal laws require the court to prioritize the child’s best interests.

When can visitation rights be denied in Alberta?

If you or a social worker can prove that the home is an unsafe environment for the child, the court may alter the custodial arrangement. The court may revoke the other parent’s visitation rights if:

• There is evidence of child abuse or molestation.
• If one parent denies the other parent’s visitation without the court’s permission.
• If there is evidence of drug or alcohol abuse in the home.

What happens if one parent does not follow a court order in Alberta?

Once you file a parental agreement with the court, the agreement becomes a court order. Consequently, if either parent refuses to fulfill the terms of the agreement, the other may enforce the agreement through law enforcement or by going to court. 

At what age can a child say they don’t want to see a parent in Alberta?

When the child turns 12, they have the right to refuse to see a parent. However, the court may require the child to provide legitimate reasons.

What to do if your child refuses visitation in Alberta

• Notify the other parent of the child’s refusal and devise a solution.
• Contact your attorney if your child refuses to see the other parent because of safety issues.
• If the other parent denies visitation, you may file an order to show cause at the courthouse.