Right of first refusal in custody agreement

[stripes]

You can put ROFR into your agreement, but if Mom decides not to follow it, there's nothing you can do. As long as Kid is being cared for appropriately during Mom's time, she has the right to do what she wishes. You might prefer that Mom sends Kid to stay with you when she's working, but she doesn't have to do so.

You can put ROFR in your agreement - you can put anything at all in your agreement, including a requirement that Kid eat only orange vegetables on Tuesdays - but not everything is enforceable. ROFR works fine as long as both parents are on board. But if one parent is not on board, it's pointless. No court is going to help you out of Mom decides not to give you ROFR, no matter what's in your agreement.

[trinton]

You can put ROFR into your agreement, but if Mom decides not to follow it, there's nothing you can do. As long as Kid is being cared for appropriately during Mom's time, she has the right to do what she wishes. You might prefer that Mom sends Kid to stay with you when she's working, but she doesn't have to do so.

You can put ROFR in your agreement - you can put anything at all in your agreement, including a requirement that Kid eat only orange vegetables on Tuesdays - but not everything is enforceable. ROFR works fine as long as both parents are on board. But if one parent is not on board, it's pointless. No court is going to help you out of Mom decides not to give you ROFR, no matter what's in your agreement.

I appreciate that. But if she agrees to ROFR, but doesn't follow it, is she then not in contempt of a court order? I can bring a motion to find her in contempt?

The only chance I have at getting the time before some stranger she's introduced to my child as a caregiver, is through the courts. She won't agree to it. The only feedback I got from the judge so far is that I could obtain a final access order that would cause her to lose her subsidised daycare. That is why I am preparing a list of other available care givers that would make more sense, but my primary argument is that we don't need daycare due to my flexible work schedule.

[blinkandimgone]

If she requires daycare, because she is not available, is that not time she should be offering me? (if there was a ROFR clause).

Not if it's during her time and if it's facilitating her employment.

But if she agrees to ROFR, but doesn't follow it, is she then not in contempt of a court order? I can bring a motion to find her in contempt?

Only if it's court ordered. Not if it's in an agreement you made. There's a huge difference.

And no court would order this.

[trinton]

Not if it's during her time and if it's facilitating her employment.



Only if it's court ordered. Not if it's in an agreement you made. There's a huge difference.

And no court would order this.

I have seen ROFR ordered by the courts on canlii.

The questions I have, is

1. Is there a greater chance at getting access during the periods she's at work
2. or better chance at doing a complete overhaul of the current access arranagement, and then figuring out when the child needs daycare and when the child doesn't
3. If the other parent is available to care of child during the times mom is at work, why shouldn't this time go to the biological parent as opposed to going to a home care provider?

[trinton]

found it.

[21] In addition to the above, Ms. Jarva shall give Mr. Kunka the right of first refusal to care for the children if she requires childcare because of her employment.

http://www.canlii.org/en/on/onsc/doc...resultIndex=45

[blinkandimgone]

Find a case where ROFR was court ordered during the other parent's time when it was facilitating the parent's employment involving a school aged child and I will gladly retract the statement.

1. No.
2. Get the schedule changed to 50 50 and you each worry about if the child needs daycare during your own time. Daycare costs continue to be shared proportionate to income as a section 7 expense.
3. It's up to the custodial parent to decide what they do with the child on their time. You decide on yours. She decides on hers. Period.

[blinkandimgone]

That case involves a young child in school part time and a one year old. Also a completely different scenario than the before and after school care you are describing.

[trinton]

Thanks blink, it helps a bunch.

The only concern I have is with her putting child in daycare every day of the week that she has her.

I am sorry but I believe time should always go to family before 3rd parties. I.e, father, grandparents, then others.

Here is another case, FYI. Is the 24hours total time that child has to be in daycare? as in, if the child has to be in daycare overnight?

30. In the event that either party is not available to care for the child for a period of more than twenty four hours during their time with the child, they shall give the other party the option of caring for the child prior to arranging for a third party to provide child care.

http://www.canlii.org/en/on/onsc/doc...resultIndex=50

[blinkandimgone]

It is 24 consecutive hours. Not 24 hours split over the course of several days a week.

[trinton]

It is 24 consecutive hours. Not 24 hours split over the course of several days a week.

Thanks. I think that is what I had seen before. But I will search again when I have more time.