Right of First Refusal Alberta
Alberta's Right of First Refusal is a clause in a parental agreement that requires the custodial parent to offer the non-custodial parent the opportunity to care for the child before contacting a third party, such as a babysitter or family member. It applies to both planned and last-minute situations and is not mandatory.
Under Alberta's Family Law Act and the federal Divorce Act, there is no fixed age at which a child gains a legal right to refuse to see a parent. The court considers the child's views and preferences in light of the child's age and maturity as part of the best interests of the child, and the views of an older, mature teenager typically carry more weight. 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 resolve it out of court through mediation or negotiation.
- You may ask the court to terminate the other parent's parental rights, which ends their Right of First Refusal.
- 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 negotiate a parenting arrangement that can address related safety concerns, such as domestic violence. 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 Right of 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) permits "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 First 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 (such as a government-issued 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 remarry or repartner, you should consider whether your custodial arrangement still fits your situation.
- If the other parent refuses to change the terms of your custodial arrangement, you may ask the court to make the changes.
- Refusing 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 the 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?
- A Right of First Refusal clause can give you extra time with your child beyond your normal parenting schedule, since you get the first opportunity to step in whenever the other parent needs coverage.
When can a child decide which parent to live with in Alberta?
In Alberta, the court may consider a child's views at any age, giving them weight according to the child's age and maturity. There is no fixed age, such as 12, at which the child's views are automatically considered or become controlling. Remember, one of the factors the court must consider when designating parental agreements is the best interests of the child.
There is no age at which a child in Alberta gains a legal right to choose which parent to live with. As a child matures, their stated preference tends to carry more practical weight, and a court may find it impractical to enforce parenting time against the wishes of an older teenager, but the decision remains governed by the child's best interests rather than the child's choice.
What to do if the custodial parent is abusive?
Canada's Divorce Act requires parents to care for and ensure their child's safety. If a parent creates an unsafe environment by abusing drugs, being neglectful, or failing 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 old enough and mature enough for the court to give real weight to their wish to live with, or spend more time with, the non-custodial parent.
- The child feels trapped in an abusive household.
- 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 or custody assessment. Alberta Children's Services can connect you with a social worker who can help assess the situation and work toward a solution.
- Family mediation. A trained mediator can help both parents negotiate changes to the custodial arrangement.
- Negotiations. If you have the resources, or you qualify for legal aid, you may negotiate a parental agreement through lawyers.
What to remember
- The court weighs a child's opinion based on the child's age and maturity; there is no fixed age, such as 14, at which a child's preference automatically controls the outcome.
- The court is not required to follow a child's preference. Alberta's Family Law Act and the federal Divorce Act both require the court to decide based on 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.
- One parent denies the other parent's court-ordered visitation without the court's permission.
- 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?
There is no fixed age, such as 12, at which a child gains a legal right to refuse to see a parent. The court weighs the child's views in light of the child's age and maturity and decides according to the child's best interests.
What to do if your child refuses visitation in Alberta
- Notify the other parent of the child's refusal and work together on a solution.
- Contact your lawyer if your child refuses to see the other parent because of safety concerns.
- If the other parent is blocking visitation without cause, you may file an application to show cause at the courthouse.
Related Canadian Guides
Frequently Asked Questions
Is a Right of First Refusal mandatory in Alberta parenting agreements?
No. It is an optional clause that parents can choose to include in a parenting agreement, or that a court can order under Alberta's Family Law Act if it considers the clause appropriate. It is not required in every case.
What law governs parenting agreements and Right of First Refusal clauses in Alberta?
Alberta's Family Law Act, SA 2003, c F-4.5, governs parenting agreements and parenting orders for separating or divorcing parents. Married couples going through a divorce may also be subject to the federal Divorce Act.
What happens if a parent violates a Right of First Refusal clause in Alberta?
Once a parenting agreement is filed with the court, it becomes an enforceable court order. A parent who ignores the clause can be found in contempt of court, and the other parent can ask the police or the court to enforce the order.
Can a parent deny access over a Right of First Refusal disagreement in Alberta?
Only where there is a genuine safety concern, such as abuse, neglect, or substance misuse in the home. Withholding a child without a valid safety reason can itself violate the parenting agreement or order.
Is there a fixed age when a child in Alberta can refuse to see a parent?
No. Alberta has no fixed age, such as 12 or 14, at which a child gains a legal right to refuse to see a parent. The court weighs the child's views according to the child's age and maturity as part of the best interests of the child.
Updates
Refreshed for accuracy: repaired three broken WordPress-migration links (one internal cross-link and two dead-anchor alberta.ca links), corrected two spots that incorrectly stated a fixed age of 14 for a child's preference (Alberta uses no fixed age, only a maturity-based standard), removed a US child-custody link that had been placed on this Alberta page in error, added primary citations to Alberta's Family Law Act and the federal Divorce Act, reformatted several run-together bullet lists for correct rendering, added a FAQ section, rewrote the truncated meta description, and swapped generic related-guide links for Alberta-specific pages.
Independently fact-checked against the cited primary sources
Sources and References
- Alberta's Family Law Act, SA 2003, c F-4.5, governs parenting agreements and parenting orders.(alberta.ca).gov
- Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the federal law governing divorcing parents.(laws-lois.justice.gc.ca).gov
- Alberta Children's Services can arrange a home assessment and connect families with a social worker.(alberta.ca).gov
- Alberta's free Family Mediation Program helps separating or divorcing parents negotiate parenting arrangements.(alberta.ca).gov