Right of First Refusal in Ontario Custody Orders
Understanding your priority right to care for your child when the other parent is unavailable—and why it matters in parenting arrangements.
Understanding your priority right to care for your child when the other parent is unavailable—and why it matters in parenting arrangements.
Legal Review: This Right of First Refusal guide was reviewed by Deepa Tailor, Senior Family Lawyer, to ensure accuracy with Ontario's Children's Law Reform Act and Family Law Rules (2026).
What It Is: A "Right of First Refusal" (ROFR) clause in your parenting plan gives you the first opportunity to care for your child when the other parent cannot during their scheduled parenting time.
When It Applies: If the other parent needs a babysitter, daycare, or family member to watch your child for more than a specified period (usually 3-4 hours), they must offer you the chance to care for the child first.
The Benefit: You maximize time with your child and maintain involvement in their daily life, rather than having them cared for by third parties during the other parent's time.
The Drawback: It can create conflict, require constant communication, and may be seen as micromanaging the other parent's time. Courts don't automatically include it—you must negotiate it.
Understanding the practical mechanics of exercising your ROFR rights in Ontario custody arrangements.
The parent with scheduled parenting time realizes they cannot personally care for the child for a period exceeding the threshold (e.g., 4+ hours).
That parent must notify the other parent as soon as reasonably possible, offering them the opportunity to care for the child during that time.
The other parent has a specified time (usually 1-2 hours) to accept or decline the offer. Silence may be treated as a decline.
If accepted, the child goes to the other parent for that period. If declined, the original parent is free to arrange alternative care (babysitter, grandparent, etc.).
Once the original parent is available again, the child returns to their scheduled parenting time as planned.
Both parents should keep records of ROFR offers and responses to avoid disputes about compliance with the clause.
Weighing the benefits and challenges to determine if Right of First Refusal is right for your family.
You spend more time with your child instead of them being with babysitters or extended family during the other parent's scheduled time.
Especially important for parents with limited parenting time who want to stay actively involved in their child's daily life.
Your child spends more time with parents rather than caregivers, which many families prefer.
If you communicate well and live close to each other, ROFR can be seamless and beneficial.
High-conflict parents may struggle with the frequent contact and coordination ROFR demands.
One parent may feel their autonomy is being restricted during their own parenting time.
If parents live far apart or have inflexible work schedules, ROFR becomes impractical.
Disagreements about what constitutes "unavailable" or proper notice can lead to ongoing conflict and court motions.
ROFR is not automatically included in Ontario parenting orders. Courts will only include it if both parents agree or if there's a compelling reason based on the child's best interests. If you're considering ROFR, be realistic about your ability to communicate effectively and live close enough to make it work.
Clearing up misconceptions about Right of First Refusal in Ontario custody arrangements.
"Right of First Refusal is automatically included in all Ontario custody orders."
ROFR is not a standard provision. You must specifically request it in your Separation Agreement or ask the court to include it in your parenting order. Most orders don't include it unless both parents agree.
"I have to offer ROFR every time I leave my child with anyone, even for 30 minutes."
ROFR clauses typically include a minimum time threshold (e.g., 3-4 hours). Short absences like running errands or attending a meeting don't trigger ROFR. The clause should clearly define the threshold to avoid disputes.
"ROFR only applies to paid babysitters, not family members like grandparents."
Unless your agreement specifically exempts certain caregivers (like grandparents), ROFR applies to any third-party care—whether it's a babysitter, daycare, or family member. This is a common source of conflict and should be clearly defined.
"Judges always include ROFR because it's in the child's best interests."
Ontario courts recognize that ROFR can increase conflict between high-conflict parents. Judges will only order it if there's evidence it serves the child's best interests and both parents can cooperate. Many judges prefer to give each parent autonomy during their parenting time.
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Deepa Tailor is the founder of Tailor Law. She has successfully argued complex mobility and relocation cases in the Ontario Superior Court of Justice.
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