- What is the Right of First Refusal in British Columbia, and how does it work?
- What if the custodial parent denies you the Right of First Refusal in British Columbia?
- Can you go to jail for failing to obey a support order in British Columbia?
- At what age can a child refuse to see a parent in British Columbia?
- How to get out of a Right of First Refusal in British Columbia
What age can a child refuse to see a parent in BC?
British Columbia 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 natural 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 support order if it is in the child’s best interest.
- If the other parent or a stepparent violates a parental order, you may enforce the order by filing a report at the court or calling law enforcement.
- You may deny the other parent parenting time if there is evidence of violence, abuse, or drug use in the household.
- You may lower your child support obligation by increasing parenting time.
- British Columbia Family Law Act.
What is the Right of First Refusal in British Columbia, and how does it work?
During a separation or divorce in British Columbia, British Columbia’s Family Law Act and Canada’s divorce act allows parents to create a parental agreement to care for the kids from the relationship. If the parents cannot reach an agreement, the court will designate parenting time and decide who the kid/s live with.
If included in your parental agreement or court order, a Right of First Refusal clause requires that if one parent is unavailable to care for the child, the individual must offer the other parent an opportunity to look after the minor.
Consequently, you may only leave the child in the care of a third party, say a nanny, grandparent, stepparent, 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, that is beneficial because if you spend more than 40% of the parental time with the child in a year, you may petition the court to lower your support obligation.
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 if to include a Right of First Refusal based on the following factors:
- Transportation requirements/how far the parents live from each other.
- How the parents will notify each other/notification procedure.
- The child care requirements and length of time required to invoke the Right of First Refusal. Typically, a day, week, or month. However, some agreements may require you to inform the other parent if you are unavailable for a few hours.
What to remember
- An out-of-court parental agreement becomes enforceable if you file the agreement at the court.
- Including a Right of First Refusal clause in your parental agreement is not mandatory.
- If the court finds including a Right of First Refusal clause is in the child’s best interest, the judge will include it.
Section 43 of British Columbia’s family law act states that, quote:
“If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (parental responsibilities), 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 requires parental agreements to contain the following. (1) An allocation of parental responsibility.
(2) Parenting time.
(3) A dispute resolution process for any conflicts that may arise.
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 if a stepparent denies you the right to care for the child, what you should do is go over your parental agreement. What does the “what happens if one parent cannot care for the child” clause say?
If the other parent or a stepparent violates the agreement, you may enforce the Right of First Refusal clause by contacting the police or filing a complaint at the local courthouse.
Can I call the police if my ex-will not let me see my child in British Columbia?
If you have a court order, the other parent denying you contact violates the order. Consequently, you may call the police or file a complaint at the court. However, British Columbia’s Family Law act allows parents to deny contact for the following reasons:
- If the child is at risk of suffering domestic violence while under the care of the other parent. In other words, you may deny contact with the child if there is evidence of violence or abuse.
- If you reasonably believe that the other parent is under the influence of drugs or alcohol during parenting time, you may deny parenting time.
- You may deny the other parent parenting time if the parent makes no contact with the child for at least 12 months without a valid excuse.
- If the child is ill, you must provide a written statement from a medical practitioner to the other parent to deny contact.
Note that British Columbia family law act section 63 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 [denial of parenting time or contact]; (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).”
What happens if the other parent is unreachable?
If you make a reasonable effort to contact the other parent to no avail. You may get 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.
Enforcing a court order may lead to a “show cause” hearing. During a show cause hearing, the accused must provide a reason for their failure to obey the order.
To avoid going to court, you may find a solution through negotiations or mediation.
Can you go to jail for failing to obey a support order in British Columbia?
Yes. But that is usually the court’s last resort. What could happen if you fail to obey a court order or if you do not show up at a show cause hearing is the court may issue “contempt of court charges.” In Canada, contempt of court is punishable by a maximum of two years minus a day in jail.
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 the 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 if the court will take into consideration their opinions.
What usually happens is the child undergoes evaluation by a psychologist or counsellor. That evaluation results in a “Voice of the Child Report.”
The judge uses the report’s findings to make a decision that is in the child’s best interest.
How to get out of a Right of First Refusal in British Columbia
If your child support agreement is causing problems at home, you may petition the court for changes, or you may use alternative means such as mediation or negotiations to make changes to the agreement.
We recommend consulting with your lawyer.