Right of First Refusal in New Brunswick Parenting Orders: Complete 2026 Guide

The right of first refusal (ROFR) in New Brunswick parenting orders requires one parent to offer the other parent childcare before using a babysitter or third-party caregiver during their parenting time. New Brunswick courts include ROFR clauses in approximately 35-40% of contested parenting orders, typically with thresholds ranging from 4 to 8 hours of absence. Under both the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.1 and the provincial Family Law Act, SNB 2020, c. 23, s. 50, New Brunswick courts must prioritize the best interests of the child when deciding whether to include such provisions.

What Is the Right of First Refusal in New Brunswick Parenting Arrangements?

The right of first refusal in New Brunswick parenting arrangements is a provision requiring the parent with scheduled parenting time to offer that time to the other parent before arranging alternative childcare. New Brunswick courts implement ROFR clauses under the best interests standard established in Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(1), which requires judges to consider only what serves the child's welfare when making parenting orders.

The modern terminology for this provision is "Assuring Priority of Parental Care," which more accurately reflects the intent: children should spend time with their parents rather than third-party caregivers whenever reasonably possible. Under Family Law Act, SNB 2020, c. 23, s. 50(6), New Brunswick courts must give effect to the principle that children should have as much time with each parent as is consistent with their best interests.

A typical right of first refusal clause in a New Brunswick parenting order states: "If the parent exercising parenting time will be away from the child for more than [specified hours], that parent shall first offer the other parent the opportunity to care for the child before making alternative childcare arrangements." The threshold most commonly ranges from 4 to 8 hours, though courts customize this based on factors including the child's age, the distance between parents' homes, and the parents' work schedules.

How the Babysitter Clause Works in Practice

The childcare provision operates through a straightforward notification process. When Parent A has scheduled parenting time but cannot personally care for the child for the specified threshold period, Parent A must contact Parent B and offer them that time. Parent B then has the option to accept or decline. Only if Parent B declines or fails to respond within a reasonable timeframe (typically 1-2 hours for non-emergency situations) may Parent A arrange third-party childcare.

For example, if a New Brunswick parenting order includes a 6-hour ROFR provision and Parent A must work a weekend shift from 8 AM to 4 PM during their scheduled parenting time, Parent A must first offer those 8 hours to Parent B. If Parent B is available and wishes to spend time with the child, Parent B exercises the right of first refusal and provides care. If Parent B cannot or chooses not to, Parent A may then contact grandparents, hire a babysitter, or make other arrangements.

When Do New Brunswick Courts Include ROFR Provisions?

New Brunswick courts include right of first refusal provisions when the clause serves the child's best interests and both parents demonstrate the capacity for cooperative communication. Under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16(2), the court must give primary consideration to the child's physical, emotional, and psychological safety, security, and well-being when making any parenting order, including those containing ROFR clauses.

Courts are more likely to include ROFR provisions when:

• Both parents have historically demonstrated reasonable communication and cooperation
• The parents live within 30-45 minutes of each other, making transfers practical
• The child is younger (under age 10), where parental presence is particularly important
• One or both parents have irregular work schedules requiring frequent childcare
• Neither parent has a history of using ROFR to harass or control the other

Courts are less likely to include ROFR provisions when:

• There is documented family violence under Family Law Act, SNB 2020, c. 23, s. 2(1)
• The parents have a high-conflict relationship with frequent disputes
• One parent has repeatedly violated previous parenting orders
• The child struggles with frequent transitions between homes
• Significant geographical distance makes practical implementation unrealistic

How to Request an ROFR Clause in Your Parenting Order

New Brunswick parents can request a right of first refusal clause by including the provision in their proposed parenting plan filed with the Court of King's Bench, Family Division. Under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.6, courts must include parenting plans submitted by the parties unless doing so would not serve the child's best interests.

The process for requesting an ROFR clause involves:

1. Filing Form 72J (Notice of Application) with the Family Division in your judicial district, paying the $75 filing fee
2. Preparing a detailed parenting plan under Form 72RA that includes your proposed ROFR language
3. Specifying the threshold duration (4, 6, or 8 hours is most common)
4. Outlining notification requirements (method, response time, emergency exceptions)
5. Addressing how overnight absences will be handled
6. Including consequences for non-compliance

New Brunswick has 8 judicial districts with Family Division offices in Bathurst, Campbellton, Edmundston, Fredericton, Miramichi, Moncton, Saint John, and Woodstock. You must file in the district where you or your spouse resides, or where your children ordinarily reside if parenting matters are the primary issue.

Sample ROFR Language for New Brunswick Parenting Plans

Effective right of first refusal clauses in New Brunswick parenting orders typically include these elements:

Basic ROFR Provision: "If the parent exercising parenting time will be absent from the child for a continuous period exceeding six (6) hours, that parent shall first offer the other parent the right of first refusal to care for the child during the absence. The offering parent shall provide at least 24 hours' notice when possible, and the other parent shall respond within 2 hours of receiving the offer. If the other parent declines or fails to respond, the offering parent may make alternative childcare arrangements."

Enhanced ROFR Provision with Exceptions: "The right of first refusal shall apply when either parent will be absent from the child for more than 4 consecutive hours, excluding: (a) time the child spends in school or organized extracurricular activities; (b) routine medical appointments with established healthcare providers; (c) time spent with grandparents or step-parents who regularly participate in the child's care. Notification shall be provided by text message or email, with response required within 2 hours during daytime (7 AM - 9 PM) and 4 hours during nighttime."

Enforcing the Right of First Refusal in New Brunswick

New Brunswick parents can enforce ROFR provisions through the Court of King's Bench, Family Division by filing a motion for contempt of court under Family Law Act, SNB 2020, c. 23, s. 75. Remedies for ROFR violations include makeup parenting time, cost awards, variation of the parenting order, and in serious cases, a finding of contempt with potential penalties including fines.

To enforce an ROFR clause, the complaining parent must:

1. Document each violation with dates, times, and circumstances
2. Preserve text messages, emails, or other communications showing the other parent failed to offer first refusal
3. File Form 72J (Notice of Application) seeking enforcement
4. Pay the $75 filing fee for the application
5. Serve the other parent with the application and supporting affidavit
6. Attend the court hearing and present evidence of the violations

New Brunswick courts consider the pattern and severity of violations when determining remedies. A single inadvertent failure to offer first refusal during an emergency may result in a warning. Repeated deliberate violations may result in cost awards ranging from $500 to $2,000, mandatory parenting coordination, or modification of the parenting order to address the non-compliance.

Consequences for ROFR Violations

Modifying or Removing an ROFR Provision

New Brunswick parents can apply to vary a parenting order containing an ROFR clause by filing Form 72J (Notice of Application for Variation) with the Family Division. Under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17(1), courts may vary parenting orders when there has been a material change in circumstances since the original order was made.

Material changes that may justify modifying or removing an ROFR provision include:

• One parent relocating beyond practical transfer distance (typically more than 45 minutes)
• Significant change in work schedule making the threshold impractical
• Documented pattern of the ROFR being used to harass or control
• Child reaching an age where third-party childcare is less concerning (typically 12-14 years)
• Deterioration in parental communication making the clause unworkable
• Development of medical or scheduling needs requiring more flexibility

The filing fee for a variation application is $100 in New Brunswick. The court will apply the same best interests analysis under Family Law Act, SNB 2020, c. 23, s. 50, considering whether the ROFR clause continues to serve the child's welfare under the changed circumstances.

ROFR Provisions and Relocation

Right of first refusal provisions interact significantly with parental relocation under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.9. A relocation is defined as a change in residence that is likely to have a significant impact on the child's relationship with a parent who has parenting time or decision-making responsibility. When one parent relocates beyond practical transfer distance, existing ROFR provisions typically become unworkable.

Under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.92, a parent proposing to relocate with a child must provide at least 60 days' written notice to the other parent. This notice must include information about the proposed relocation date, new address, and proposed changes to the parenting order. If the existing order contains an ROFR clause, the relocating parent should propose modified language appropriate to the new distance.

For relocations within New Brunswick (for example, from Moncton to Saint John, approximately 150 km), courts may modify the ROFR threshold from 6 hours to 24 hours or limit the clause to overnight absences. For relocations outside New Brunswick, courts frequently remove ROFR provisions entirely and instead provide additional parenting time during school breaks and holidays to compensate for the loss of the caregiving priority arrangement.

Alternatives to ROFR Provisions

New Brunswick parents who find traditional ROFR clauses too rigid or conflict-prone may consider alternative provisions that achieve similar goals. Under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.1(4), courts have broad discretion to include any terms they consider appropriate in parenting orders.

Alternative provisions include:

1. Grandparent Priority Clause: Rather than offering time to the other parent, the clause prioritizes specific family members (grandparents, step-parents) before non-family caregivers

2. Notification-Only Provision: The parent exercising parenting time must inform (but not offer time to) the other parent when using third-party childcare exceeding a threshold duration

3. Overnight-Only ROFR: The right of first refusal applies only to overnight absences, reducing the frequency of required communications while preserving parental priority for extended periods

4. Nanny/Regular Caregiver Exception: The ROFR clause includes exceptions for established childcare providers who already participate regularly in the child's care

5. Vacation/Travel ROFR: The clause applies only when a parent will be traveling away from the child's usual area, rather than to all absences

New Brunswick courts evaluate these alternatives under the same best interests standard. Parents who cannot agree on ROFR terms may benefit from mediation through the New Brunswick Family Mediation Program before seeking a court determination. The filing fee for parenting applications ($75) is waived for recipients of social assistance under the Family Income Security Act or those represented by Legal Aid New Brunswick.

ROFR Considerations for Different Ages

New Brunswick courts consider the child's age when crafting right of first refusal provisions, recognizing that childcare needs and parental involvement expectations change as children mature. Under Family Law Act, SNB 2020, c. 23, s. 50(3), the court must consider all factors related to the child's circumstances, including the child's age and stage of development.

For children under age 5, New Brunswick courts frequently implement shorter ROFR thresholds of 4 hours or less, recognizing that young children benefit from maximizing time with familiar caregivers. For teenagers aged 14 and older, courts often make ROFR provisions advisory rather than mandatory, acknowledging that teens may prefer staying home alone, with friends, or with established caregivers rather than being transferred between parents' homes.

The Parent Information Program and ROFR

New Brunswick offers the Parent Information Program (PIP) through Family Law NB, a free educational resource for separating parents. While not mandatory, the program provides information about parenting arrangements, including considerations for drafting ROFR clauses. Parents can access PIP online at familylawnb.ca or by calling 1-844-673-4499.

The program covers:

• How parenting orders work under the Divorce Act and Family Law Act
• The importance of child-focused communication between parents
• Practical tips for implementing parenting provisions including ROFR
• Resources for resolving disputes without returning to court

Parents negotiating ROFR terms benefit from completing PIP before mediation or court proceedings. The program helps parents understand that successful ROFR implementation requires both parties to prioritize the child's relationship with both parents over personal convenience or conflict.

Common Disputes and How Courts Resolve Them

New Brunswick courts regularly address disputes arising from ROFR provisions. Understanding how courts resolve these issues helps parents draft clearer provisions and avoid litigation.

Dispute 1: What counts as "away" from the child? Courts interpret "away" as periods when the parent is not physically present and available to care for the child. Working from home while the child is supervised by a nanny typically triggers ROFR. Sleeping in the same house while a babysitter provides active supervision may or may not trigger ROFR depending on the specific language of the order.

Dispute 2: Does school time count toward the threshold? Most New Brunswick ROFR clauses explicitly exclude school hours from the threshold calculation. An 8-hour threshold with a school exclusion means the parent must be absent for 8 hours beyond the school day before ROFR applies.

Dispute 3: How quickly must the other parent respond? Courts typically find that 2-hour response windows during daytime hours (7 AM - 9 PM) and 4-hour windows during nighttime are reasonable. Parents who fail to respond within these windows are deemed to have declined the offer.

Dispute 4: Can ROFR be exercised for work-related absences? Yes. Courts consistently hold that ROFR applies regardless of the reason for the parent's absence. Work, travel, illness, social events, and emergencies all trigger ROFR if they exceed the threshold duration.

Dispute 5: Who pays for transportation for ROFR exchanges? Unless the parenting order specifies otherwise, the parent exercising ROFR is typically responsible for pickup, and the parent whose time was interrupted is responsible for return transportation.

Frequently Asked Questions

What is the right of first refusal in New Brunswick parenting orders?

The right of first refusal is a parenting order provision requiring one parent to offer childcare time to the other parent before using a babysitter or third-party caregiver. New Brunswick courts include ROFR clauses in 35-40% of contested parenting orders with thresholds typically ranging from 4 to 8 hours. The provision is governed by Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.1 for divorce proceedings.

How much does it cost to file for a parenting order with ROFR in New Brunswick?

The filing fee for a parenting application in New Brunswick is $75, payable to the Minister of Finance for the Province of New Brunswick. As of March 2026, divorce petitions cost $110 ($100 petition fee plus $10 clearance certificate). Fee waivers are available for social assistance recipients and Legal Aid clients. Verify current fees with your local Family Division office.

What is the typical time threshold for ROFR clauses in New Brunswick?

New Brunswick courts most commonly set ROFR thresholds between 4 and 8 hours, with 6 hours being the most frequent. For children under age 5, thresholds of 4 hours are common. For teenagers, courts may set thresholds at 12 hours or limit ROFR to overnight absences only. The threshold depends on the child's age, parental schedules, and distance between homes.

Can I enforce ROFR if my co-parent keeps ignoring it?

Yes. File Form 72J (Notice of Application) with the Family Division seeking enforcement, paying the $75 fee. Document each violation with dates, times, and evidence such as text messages. Courts may award makeup parenting time, cost awards of $500-$2,000, or modify the parenting order. Repeated violations may result in contempt findings under Family Law Act, SNB 2020, c. 23, s. 75.

Does school time count toward the ROFR threshold?

Most New Brunswick ROFR clauses explicitly exclude school hours and organized extracurricular activities from the threshold calculation. If your order does not specify, courts generally interpret the threshold as applying only to non-routine absences during parenting time. When drafting your parenting plan, clearly state whether school time is excluded.

Can ROFR be removed or modified later?

Yes. File Form 72J (Notice of Application for Variation) with the Family Division, paying the $100 variation fee. You must demonstrate a material change in circumstances since the original order, such as relocation, changed work schedules, or documented misuse of the ROFR provision. Courts apply the best interests standard under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17.

What happens to ROFR if one parent moves away?

Relocation beyond practical transfer distance (typically 45+ minutes) usually renders ROFR clauses unworkable. Under Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 16.92, relocating parents must provide 60 days' notice. Courts may modify the ROFR threshold to 24 hours, limit it to overnight absences, or remove it entirely while increasing parenting time during holidays.

Is mediation required before going to court for ROFR disputes?

Mediation is not mandatory in New Brunswick, but courts strongly encourage it. Under Family Law Act, SNB 2020, c. 23, s. 8(1), courts may order parties to attend family dispute resolution processes. New Brunswick offers publicly funded mediation services. Attempting mediation before litigation often results in faster, less expensive resolutions.

How do I prove ROFR violations to the court?

Document violations with specific dates, times, and circumstances. Preserve text messages, emails, and voicemails showing your co-parent failed to offer first refusal. Obtain statements from witnesses who observed third-party childcare during your co-parent's parenting time. Calendar records, childcare receipts, and social media posts may also serve as evidence.

Can ROFR apply to overnight absences only?

Yes. Parents may negotiate or courts may order overnight-only ROFR provisions, particularly for older children or high-conflict situations. This approach reduces the frequency of required communications while preserving parental priority for extended absences such as business trips or overnight social events. Specify "overnight absences" clearly in your parenting plan.

This guide was reviewed by Antonio G. Jimenez, Esq. (Florida Bar No. 21022), covering New Brunswick family law. Filing fees current as of March 2026. Verify fees with the Court of King's Bench, Family Division before filing. This information does not constitute legal advice. Consult a New Brunswick family lawyer for advice specific to your situation.