Lenza v Wilson 2024 ABKB 640: Clarification on first right of refusal parenting and determining percentage of parenting time for child support purposes

We are excited to share our commentary on Lena v. Wilson 2024 ABKB 640. This decision is a very interesting and helpful decision for family law litigants who have shared parenting with a first right of refusal clause built into the parenting plan.

Shared parenting is parenting time that results in the parties having the children 50/50 up to 60/40. In other words, if you have 40% parenting time or more, then you are considered to have shared parenting. If you have less than 40% parenting time, then the other parent is considered to be the “primary parent”. Shared parenting often has an impact on child support. If you are in shared parenting then child support is often offset pursuant to section 9 of the Federal Child Support Guidelines. That is to say, that parent 1 will pay parent 2 child support for the time that the children are with parent 2 and vice versa. For some couples, whether you are in shared parenting or a primary parenting regime will translate into big bucks for child support.

A first right of refusal clause, generally requires the parties to offer their parenting time to the other parent first, when a situation arises where they cannot use their own parenting time. For example, if a parent was going out of town for a few days for a work trip, a first right of refusal clause would require the travelling parent to offer their parenting time to the other parent first, before asking a babysitter or a family member to watch the children.

In Lenza v. Wilson the father was leaving the child with his mother for “significant” periods of time, rather than following the first right of refusal rules in their separation agreement. The father’s parenting time was just over the line in terms of qualifying as a shared parenting regime: the father had parenting time 43% of the time.

At court, the mother argued that the father’s parenting time was less than 40% due to him leaving the child with his parents, that the first right of refusal clause was not being followed and as a result the father’s child support should be increased as in her opinion the parties were not in a shared parenting plan.

The Justice did not take the mother’s side. Rather the Justice ruled that the father's parenting time should not be reduced due to the child being babysat by the paternal grandmother.

The court acknolwedged that the father had been entrusting the child to the paternal grandmother for extended periods of time, including overnights, while he was at work, despite the existence of the first right of refusal clause. However, the court noted that the Mother was cognizant of this and had not raised any objections.

In response to the mother’s position that the parenting arrangement was not considered a "shared parenting" arrangement, the court gave clarification on how to calculate parenting time.

According to the Justice the appropriate method for calculating parental time necessitates a two-pronged approach that considers both quantitative and qualitative factors. For the quantitative test, what matters is which parent is expected to take care of the child's needs even when the child is not with that parent (for example, when the child is at school, daycare, sports, etc.). The qualitative review takes into account the important quality time a parent may spend with their child, even if they are only parenting for a small part of the day.

The court found that the fact that the father's grandparents were babysitting during his parenting time did not change the qualitative analysis in a way that meant he should lose "credit" for that time. The father was still responsible for feeding the child, making sure the child was ready for school, and taking care of the child's medical and hygiene needs. The father worked in the same area, was on call in case of an emergency, and was still in charge of the child. The Justice noted that this situation was different from when a parent was on vacation out of the country, sick in the hospital, or otherwise really unable to be a parent in any useful way.

In finalizing his decision the Justice strongly told the father to follow the right of first choice clause and asked the mother to do the same by agreeing to let the father parent the child at "such further and other times" as the parenting agreement said. He said:

"What must be avoided and should not be tolerated by the Courts is any attempt to manipulate parenting times, ignore first refusal clauses, and refuse reasonable requests for additional parenting time solely for the purpose of trying to get above or below the 40% threshold. Such manipulation is clearly contrary to respectful, progressive co-parenting and is certainly going to undoubtedly be viewed as contrary to the best interests of the child."

This decision is an interesting case that provides further insight to parents and family lawyers as to what factors should drive a calculation of parenting time for child support purposes.

If you have questions about parenting time, child support in shared parenting plans, or other family law inquiries, we invite you to book a free consultation with one of our family lawyers. You can start the process by filling out the form here.