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Right of First Refusal and New Spouse

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  • Right of First Refusal and New Spouse

    Good morning,

    I am presently moving to have my divorce order updated as it has no reference to right of first refusal as it comes to the care of my two beautiful girls (D8 and D11). We have a mediated agreement which pretty much fell way to the side as soon as it was signed because it had three paragraphs dealing with third party care, so I am looking to have something succinct put into our order.

    At present, the 3rd paragraph related to third party care states, that "it is understood by both parents that, when either is not able to care for the children during his or her parenting time, that he or she provide the other parent with the first opportunity to do so. The only exception to this being where the parent provides at least a weeks notice that a third party will be caring for the children. That third party is ought to be a family member, close family friend or otherwise know to the children etc etc etc"

    I do not see this as being unreasonable when it comes to someone outside of the home, but I am uncomfortable with the fact that it pretty much lumps in my new partner with that group of "third-party". While she is not our daughters parent, we have been together for six years and we have lived together in the same home with my daughters for two and a half years. It seems unreasonable to me that if I were to have the opportunity to do something that pulls me away for an evening on relatively short notice, that we would have to disrupt our home life/atmosphere, because I wouldn't have been able to let my ex know a week prior that our daughters would be staying home with my new partner. Now these events are few (only one occasion that I can think of as I tend not to make any plans during my parenting time).

    But surely it isn't unreasonable to ask that there be some autonomy within the new family environment for one or two nights? If the girls want to go to their mom's on one of those rare occasions, ok, but that it be required seems odd, especially when they actively talk about having the opportunity to do things on their own my partner.

    Does anyone have a clause in their agreement that acknowledges/balances the autonomy of the new family environment with right of first refusal for the other parent?

    Many thanks,

  • #2
    I would think that your current spouse is, indeed, your "family" ?

    Comment


    • #3
      would you be OK with that if you ex left the kids with her new boyfriend she met online 3 weeks ago?
      Just leave out any third party from the agreement. If you need to leave your kids just leave them with your gf if they get along well. What you do with the kids during your time is only your and the kids business, you don't need to ask anybody's permission for this. But this is true vice versa.

      Comment


      • #4
        To me the right of first refusal is more for extended periods of time. You going out for a night wouldn't require you to return the girls, at least that's my take. My husband has to work sometimes when we have his kids. They stay with me during the 9 hours he is gone, no big deal. But you have to make sure it works both ways.

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        • #5
          Yeah ROFR, is normally for extended periods of time or maybe repetitive known periods of time. I'm asking for ROFR for 24hr periods.

          I wouldn't open the topic, just do what you think is best and let her open up the topic, discuss it reasonably and you can always lean on that your second wife is now "close family"

          Comment


          • #6
            agreed, length of time is the key here. It doesn't apply every time you run to the store or go out for an evening. Some people consider it ad all day (rather than day care), over night or 24 hours. But going out for an evening? I've never heard of it being a ROFR situation.

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            • #7
              ROFR are pretty much toothless clauses people put into agreements with best intentions that only end up causing more problems then they are worth.

              Why are the toothless? Because they work if both parents abide by them and the terms are fairly crystal clear. Any ambiguity in the terms and they only create problems as each party interprets the clause in a way that benefits them. Another reason they are toothless is because they don't work if Parent A doesn't tell Parent B they are heading out of town to work for a night.

              A judge in the OP's case would likely toss any ROFR contempt motion by the ex as the OP's new spouse is there and capable of looking after the kids. But OP must know that the sword has two edges, and that interpretation will swing both ways.

              IMO, I simply wouldn't tell the ex if you have to leave for a few hours. If you are heading out of town for a couple days, I would tell the ex because that is what a reasonable person would expect. But if you get called into work for a shift or whatever, and your spouse is there and you will be returning to your normal parenting schedule, I wouldn't tell the ex. Just live your life and keep the flow of information to the ex limited to what she needs to know about the kids.

              Comment


              • #8
                I, personally, don't put too much emphasis on the ROFR. The ex does. Her starting point is that our daughters will always want, if given the opportunity, to spend extra time with her. I don't put too much stock into that way of thinking.

                She has moved into her boyfriends home. As much as I would like to have extra time with our daughters, it just doesn't make sense to me that if she were to go out of time for an evening, that it would be expected that, as a starting point, our daughters would have to come to me when they might well have the opportunity to spend some time with a new family member (her boyfriend) and foster their relationship with him (by all accounts he's a good to our daughters, has a daughter himself and is a family man and our daughters seem very positive about him).

                In our direction, however, it's usually statements to the effect of "I am their mother.." and "I take precedence over..." etc. etc.

                If she absolutely wants something in there, again, I would think it reasonable to have two conditions 1: if the care is to be provided by someone not living in the home and 2: for more than 1 night etc.

                But honestly, how about, when they're home they're home, I can make whatever arrangements are needed and, if it works, can always offer the extra time with their mom. Seems simple enough for me.

                Comment


                • #9
                  This is probably where the problem will be created. She wants right of first refusal but will probably not tell you if the opportunity presents itself in your favour. Is there any reasoning with her that unless the period of time is say over 48 hours you ask the other if they would like to have the kids?

                  Comment


                  • #10
                    Your order says "it is understood by both parents that, when either is not able to care for the children during his or her parenting time, that he or she provide the other parent with the first opportunity to do so".

                    In my view, if you're going out for an evening and the kids are staying home with your girlfriend, it's not a case of you being "not able to care for them". You ARE caring for them - you've made appropriate arrangements for them to be looked after by a responsible adult for a few hours. "Caring for the children" doesn't mean being physically right next to them all the time. I don't think right of first refusal is relevant here. Just keep doing what you're doing.

                    If you're going away for a few days, it's polite to inform Mom and offer her some more time with the kids because, well, it's polite to do so. But I wouldn't sweat the smaller stuff.

                    (My ex goes out of town a lot on his parenting time and leaves Kid with his new mother-in-law - I wish he'd ask me, because I'd be happy to have her and it's probably more fun for her to hang out with me. But I recognize that he is making appropriate care arrangements for Kid, and during his parenting time it's his business, so I'm not going to make an issue out of it).

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                    • #11
                      It great to have open communication between parents...until that information is used against you. What you do with the children is your business.

                      If this an issue with the ex, let her address it with the court and keep communication on your life minimal.

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                      • #12
                        Just had a thought.

                        Is the care required for you to work? If so, obtaining the services of a daycare/babysitter for the purposes of work has routinely been found that child care for the purposes of work do not fall within the realm of ROFR. The reasoning is that a parent should not be negatively impacted in their parenting time because they have to work for a living.

                        Here is a case where a judge found it unnecessary:

                        https://www.canlii.org/en/on/onsc/do...&resultIndex=6

                        Another case.

                        https://www.canlii.org/en/on/onsc/do...resultIndex=14

                        [27] The applicant also refers to the “right of first refusal” term in paragraph 30 of Chappel, J.’s order which states that, “In the event that either party is not available to care for the child for a period of more than 24 hours during your time with the child, he shall give the other party the option of caring for the child prior to arranging for a third party to provide child care.” The applicant believes this clause means that if the respondent is not personally with Destini during his entire access, she is entitled to access with Destini who should not be left with the grandmother.


                        [28] I disagree given the facts as I have accepted them noted below regarding what has in fact been happening at the respondent’s residence with his mother in Burlington.


                        There are other cases. You just have to filter through them.

                        Comment


                        • #13
                          Excellent input from everyone and very much appreciated. My ex applies ROFR to pretty much everything and one of the other clauses actually references 'for work'.

                          It really does seem like more of a hastle than anything else.

                          On a previous page, where the poster talks about her ex keaving theur daughter with hjs new mother in law but she accepts it, even though it certainly isn't her first choice; that's where my ex loses her mind.

                          She will ask for something, but she won't get something that a: interferes with the family and home, b: stops me fro facilitating time with our daughters and other family members who love them and most importantly c: doesn't take into account the girls expressed desire to have opportunuties to spend time with those people.

                          Maybe I should write that down.

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                          • #14
                            One idea, instead of looking at it from an 'i can't be with my kid for the evening because I have an event and need someone to watch the kid's perspective, perhaps try using those opportunities to purposely arrange special activities or time for your spouse with the kid, and since the kids are busy with her... Well you just may as well go out!

                            Same as you would if the kid went on a play date to a friend's, her mother wouldn't get to have ROFR over that.

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                            • #15
                              Just do it. Leave them with your partner. If you get asked simply state she is your family. Then let your ex take you to court to fight it.

                              Leave the onus in her lap to fight. As far as you are concerned a 6 year relationship is common law and by law she if effectively family.

                              Don't stress...just do it.

                              Comment

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