Right of First Refusal British Columbia
In British Columbia family law, a right of first refusal is a clause in a parental agreement or court order that requires the custodial parent to offer the other parent an opportunity to care for the child before leaving the child with any third party, such as a babysitter or grandparent.
What age can a child refuse to see a parent in BC?
British Columbia's 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 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 parenting order or parenting arrangement if it is in the child's best interests.
- If the other parent or a step-parent violates a parenting agreement or order, you can apply to the court to enforce it; jail time and police pickup of the child are not standard remedies under the Family Law Act for an ordinary denial.
- You may lawfully deny the other parent parenting time if there is evidence of family violence, drug or alcohol impairment, or a documented illness.
- Reaching the 40% shared-parenting threshold can change how your child support is calculated.
What is the Right of First Refusal in British Columbia, and how does it work?
During a separation or divorce in British Columbia, the province's Family Law Act and Canada's federal Divorce Act allow parents to create a parenting agreement to care for the children from the relationship. If the parents cannot reach an agreement, the court will decide parenting time and who the child or children live with.
If included in your parenting agreement or court order, a Right of First Refusal clause requires that if one parent is unavailable to care for the child, that parent must offer the other parent an opportunity to look after the child.
Consequently, you may only leave the child in the care of a third party, such as a nanny, grandparent, step-parent, 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 can be beneficial: spending at least 40% of the parenting time with the child over a year can shift the calculation to the "set-off" method under section 9 of the Federal Child Support Guidelines, which can lower your support obligation depending on each parent's income and the child's needs. For a full walkthrough of how support is calculated in the province, see our guide to British Columbia child support laws.
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 whether to include a Right of First Refusal based on the following factors:
- Transportation requirements and how far the parents live from each other.
- How the parents will notify each other (the notification procedure).
- The child care requirements and length of time required to invoke the Right of First Refusal. Typically a day, week, or month, though some agreements may require you to inform the other parent if you are unavailable for even a few hours.
What to remember
- An out-of-court parenting agreement becomes enforceable once you file it with the court.
- Including a Right of First Refusal clause in your parenting agreement is not mandatory.
- If the court finds that including a Right of First Refusal clause is in the child's best interests, the judge will include it.
Section 43 of British Columbia's Family Law Act states, in part, quote:
"If a guardian is temporarily unable to exercise any of the parental responsibilities described in section 41 (a), (c), (d), (f) to (j) or (l), 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 written parenting agreements to address the following. (1) An allocation of parental responsibilities.
(2) Parenting time. (3) How the agreement will be implemented.
(4) 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 a step-parent, denies you the right to care for the child, you should review your parenting agreement. What does the "what happens if one parent cannot care for the child" clause say?
If the other parent or a step-parent violates the agreement, you can enforce the Right of First Refusal clause by applying to the court. Routine denial disputes are handled through the court process described below rather than by police.
Can I call the police if my ex-will not let me see my child in British Columbia?
If you have a court order and the other parent denies you contact without a valid reason under section 62, that is a violation of the order. In practice, the Family Law Act directs these disputes to the court rather than to police enforcement. British Columbia's own family justice guidance is explicit that jailing the parent who denies parenting time, or having police take the child to enforce parenting time or contact, are not available remedies under these sections, because such extraordinary remedies are almost never in the child's best interests. Police involvement is generally reserved for genuine emergencies, such as a real risk to the child's safety or an unlawful attempt to remove the child from the province, not routine Right of First Refusal disagreements.
Under section 62 of the Family Law Act, a guardian's denial of parenting time or contact is not considered wrongful if:
- The guardian reasonably believed the child might suffer family violence if the parenting time or contact were exercised.
- The guardian reasonably believed the other parent was impaired by drugs or alcohol at the time the parenting time or contact was to be exercised.
- The child was ill and the guardian has a written statement from a medical practitioner saying the parenting time or contact should not go ahead.
- In the 12 months before the denial, the other parent repeatedly failed, without reasonable notice or excuse, to exercise their own parenting time or contact with the child.
Note that section 63 of British Columbia's Family Law Act 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 (2) (a), (b) or (e); (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)."
Consequently, if either parent disobeys a court order, the other may go to court to enforce it.
What happens if the other parent is unreachable?
If you make a reasonable effort to contact the other parent to no avail, you may ask 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 negotiation or mediation.
Can you go to jail for failing to obey a support order in British Columbia?
Not for an ordinary denied Right of First Refusal. Under sections 61 to 63 of the Family Law Act, the remedies for denied or unexercised parenting time are court-based: family dispute resolution, counselling, makeup parenting time, reimbursement of expenses, or supervised exchanges. British Columbia's family justice guidance is explicit that jailing the parent who denies parenting time, or having police remove the child to enforce it, is not available under these sections, because such extraordinary remedies are almost never in the child's best interests.
A separate, much rarer possibility is a general contempt of court application, reserved for cases where a parent flatly and repeatedly refuses to comply with a court order at all. Even then, courts typically start with a show cause hearing and give the parent a chance to purge the contempt (comply going forward) before considering a fine or, in the most extreme and repeated cases, a short jail term. Jail is a last resort and uncommon in Right of First Refusal disputes specifically.
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 an 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 whether the court will take their views into consideration.
When a child's views are relevant, the court can order an assessment under section 211 of the Family Law Act, often carried out by a family justice counsellor, a social worker, or another person the court approves. Depending on what is needed, this can be a shorter Views of the Child report focused on the child's own wishes, or a fuller assessment that also looks at each parent's ability to meet the child's needs. British Columbia's Family Justice Services Division can help connect families with a qualified assessor.
The judge uses the report's findings, alongside the child's age and maturity, to make a decision that is in the child's best interests.
How to get out of a Right of First Refusal in British Columbia
If your parenting agreement is causing problems at home, you may petition the court for changes, or you may use alternative means such as mediation or negotiation to make changes to the agreement.
We recommend consulting with your lawyer.
Related Canadian Guides
Frequently Asked Questions
Is a Right of First Refusal mandatory in British Columbia parenting agreements?
No. It is an optional clause that parents can include in a parenting agreement, or that a court can add to a parenting order under section 44 of the 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 British Columbia?
British Columbia's Family Law Act, SBC 2011, c 25, 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.
Can police or jail be used to enforce a Right of First Refusal in British Columbia?
Not for an ordinary denial. Sections 61 to 63 of the Family Law Act direct these disputes to the court, and British Columbia's family justice guidance confirms that jail and police pickup of the child are not available as remedies under those sections. A rare, separate contempt of court application is possible if a parent flatly refuses to follow a court order at all.
Can a parent deny a Right of First Refusal in British Columbia?
Only where there is a genuine safety concern. Under section 62 of the Family Law Act, denial is not wrongful if there is a reasonable belief of family violence or impairment by drugs or alcohol, a documented illness, or if the other parent has repeatedly failed without excuse to exercise their own parenting time in the past 12 months.
Is there a fixed age when a child in British Columbia can refuse to see a parent?
No. British Columbia 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 age and maturity, sometimes with help from a views-of-the-child report under section 211 of the Family Law Act.
Updates
Refreshed for accuracy: repaired a broken WordPress-migration link (an Ontario-specific court form wrongly cited on this British Columbia page) and replaced it with British Columbia's actual section 211 views-of-the-child process; removed a stray link to a US child-custody page embedded inside a statutory quote; corrected the section 43 and section 44 quotes to the verbatim Family Law Act text, restoring the 'implementation of the agreement' element that had been dropped; rewrote the enforcement and jail-time sections to reflect that sections 61 to 63 of the Family Law Act do not authorize police pickup or imprisonment for a denied Right of First Refusal; corrected the parenting-time-denial reasons to match section 62 exactly; added a citation for the 40% shared-parenting child support rule under the Federal Child Support Guidelines; reformatted several run-together bullet lists for correct rendering; added a FAQ section; and swapped generic related-guide links for British Columbia-specific pages.
Independently fact-checked against the cited primary sources
Sources and References
- British Columbia Family Law Act, SBC 2011, c 25, Part 4 (Care of and Time with Children), sections 41 to 63.(bclaws.gov.bc.ca).gov
- British Columbia Family Law Act, Part 10, section 211 (court-ordered assessments and reports on a child's views and needs).(bclaws.gov.bc.ca).gov
- Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), the federal law governing divorcing parents.(laws-lois.justice.gc.ca).gov
- Federal Child Support Guidelines, SOR/97-175, section 9 (shared parenting time of 40% or more).(laws-lois.justice.gc.ca).gov
- Province of British Columbia: What can I do if the other parent doesn't follow the agreement or order about parenting time or contact?(www2.gov.bc.ca).gov
- Province of British Columbia: Family Justice Services Division.(www2.gov.bc.ca).gov