The Right of First Refusal or “Assuring Priority of Parental Care” is optional protection that divorcing or separating parents may include in their support agreement. The court may include it if the clause is in the best interest of the child/ren.
The clause requires that whenever the custodial parent is unable to provide care to the child because of illness, work, date, vacation, or other reasons. You must first offer the child’s other natural parent an opportunity to look after the child. Consequently, before you call a babysitter or leave a child under the care of a family member, including grandparents and step-parents, you must ask the child’s father or mother first.
Quick take: Manitoba Right of First Refusal clause explained
- A Right of First Refusal is not a mandatory addition to parental agreements or court orders in Manitoba.
- If your parental agreement includes a Right of First Refusal clause, you must notify the other parent before leaving a child in the care of a third party.
- If the other parent is unable to care for the child, you may hire a babysitter or leave the child in the care of a third party, such as a family member.
- A parental agreement is only enforceable if you file it at the court.
- Failure to obey a court order may lead to contempt of court charges and possible jail time.
- Unlawfully restricting access to a child is a violation of a court order.
- If the other parent or a step-parent denies you access to your child, you may contact the police or file a complaint at the local court.
- You may deny the other parent access to the child if there is evidence of drug/alcohol abuse or if the home is unsafe for the child.
References
What is the meaning of Right of First Refusal in Manitoba?
Canada’s divorce act and Manitoba’s family law act allow parents to negotiate support or parental agreements out of court during a divorce or separation. One of the elements the agreement may contain is a Right of First Refusal or “Assuring Priority of Parental Care” Clause.
The Right of First Refusal clause, as mentioned requires the custodial parent to prioritize the non-custodial parent when or if unavailable to care for the child. If you include the clause in your separation agreement, you must notify the other parent whenever you are unavailable to provide care for the child/ren.
Note that a parental agreement in Manitoba is only enforceable if you file it at the local courthouse. Once filed, the agreement becomes a court order, meaning failure to obey the terms and conditions may lead to contempt of court charges.
Can a child support order contain a Right of First Refusal?
If it is in the child’s best interest, a child support order in Manitoba may contain a Right of First Refusal. But, what happens if the other parent refuses to obey the Right of First Refusal?
Your parental agreement must also contain a dispute resolution process. For example, if the other parent violates the order or agreement, before going to court, you may use the dispute resolution process to solve the issue.
Legal experts recommend that if you include a Right of First Refusal clause in your agreement, you should also have a “what happens if one parent is unable to care for the child clause?”
How to enforce a parental agreement in Manitoba
Manitoba Child Custody Enforcement Act Section 9(3) “Duty to Act” states that, quote:
“A peace officer, police force or an agency directed to act by an order under subsection (1) shall do all things reasonably able to be done to locate, apprehend and deliver the child in accordance with the order.”
Consequently, if either parent disobeys a court order, the other may call the police or file a complaint at the local courthouse,
When can the court issue an order to locate and take a child in Manitoba?
Subsection 1 of the act says that if there are reasonable grounds to believe that any of the following situations exist. Law enforcement may locate and take the child.
- If the parent or step-parent unlawfully withholds the child from a person entitled to access or custody of the child.
- If a person who is prohibited by a separation agreement, family arbitration, or court order from removing the child from Manitoba proposes to remove the child from the province.
- If a person entitled to have access to the child tries to remove the child from the province and the child is not likely to return.
What happens when access to a child is wrongfully denied in Manitoba?
Section 14.1 “contempt of court orders” and 14.2 “conditions of imprisonment” state that, quote:
“Every court may punish any contempt of or resistance to its process or orders in respect of custody or of access to a child by a fine of not more than $500. Or imprisonment for not more than six months or both. An order for imprisonment under subsection (1) may be made conditional upon default in the performance of a condition set out in the order and may provide for the imprisonment to be served intermittently.”
Contempt of court charges and possible jail time are the court’s last resort. What would happen if you deny access to a child (1) the court may order you to reimburse any reasonable expenses incurred because of wrongful denial of access. (2) the court may require supervision of access.
Can my partner stop me from having access to my children in Manitoba?
The court or your partner may deny you access to your children if there are safety concerns. For instance, if the child feels unsafe with the other parent or if there is evidence of criminal activity, domestic abuse, drug/alcohol abuse, or if the parent engages in inappropriate behaviour that risks the child’s safety. You may petition the court to deny or limit access to the child.
Should you include a Right of First Refusal in your parenting agreement?
If the parents live close to each other and you are on good terms, you should include a Right of First Refusal clause in your agreement. However, to avoid distrust, conflicts, and possible court battles. It is easier to create a parenting schedule that both parties are comfortable with.
The idea is to create a schedule that lays out which parent is responsible for what and what happens if either of you is unavailable to care for the child.
Also, before going to court, you should consider settling disagreements through mediation or negotiations. We recommend:
- Create an open line of communication with the other parent.
- Prioritize the child’s best interests (if a parental arrangement causes problems for the child, consider making changes).
- Include a dispute resolution process in your parental agreement.
- Keep the wording simple and clear.
- Ensure that all agreements and changes to your parental agreement are in writing.
- Do not violate a court order without a justifiable reason.
At what age can a child make the decision not to see a parent in Manitoba?
Manitoba’s Family Law Act does not specify the age at which a child can decide what parent to live with. Instead, the court designates parental responsibility and parenting time based on the best interest of the child.
If the child is mature or old enough, the court may consider his opinions when making decisions.
For kids in Manitoba, what you need to remember is:
- At 16, you may enter the workforce without consent from your parents. You may also get married through court order or with parental consent.
- Once you turn 18, your parents no longer owe you a duty of care. You may get a job, get married, and if you commit a crime, you will face charges as an adult.
- If the parents cannot agree on what is best for the child in their agreement, the court will decide.
- If you want your opinion on who you should live with heard during separation or divorce, you must create a report through a social worker or psychologist.
What happens if a child does not want to visit the other parent in Manitoba?
If the child refuses to see the other parent because of safety concerns such as domestic violence, abuse, or other safety issue. To avoid getting into trouble for contempt of court, consult with your attorney or petition the court to make suitable changes to your parental agreement.
Remember, contact with a child is a right and responsibility, meaning unlawfully denying the other parent visitation may lead to legal turmoil.
If you are denied access to your child, you may file an Order to Show Cause at the court. An Order to Show Cause will require the other parent to explain his/her failure to provide access.
How to get out of a Right of First Refusal clause in Manitoba
To make changes to your support order, you may petition the court, or the parents may solve the issue through mediation or negotiations. We recommend consulting with your lawyer if your support agreement or order contains the Right of First Refusal clause.