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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #1 (permalink)  
Old 10-12-2012, 10:06 AM
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Default right of refusal with before and after school care

I have a small scenario in which I'm looking for some guidance,

My ex and I signed an agreement in March, 2012 where I have agreed to pay 50% of daycare per S.7.

We also agreed to first right of refusal for any period over 6 hours (she doesn't want my common-law to look after them). Right of refusal states

"It is in the children's best interest to spend time with the other parent than with a third party. Accordingly, if either of them cannot care for the children, each party will have the right of first refusal if he/she is not able to personally care for the children for a period of more than 6 hours on the day that they are scheduled to care for the children due to Cantstandheranymore and her being required to work on the day he/she is scheduled to care for the children. Subject to the above, each party may use third party caregivers if the period he/she cannot care for the children is under 6 hours due to work commitments or the other party does not accept the right of refusal. " (abridged)

My scenario is that the children are in every other day kindergarten and full day daycare the other days.

She works mon - fri, I work 4 days on 12 hours and 4 days off 12 hours.

I have the children my 4 days off and do not require before and after school care. I have offered for her to drop kids off at my place (100 metres away from school) before school, and I can pick up (or new spouse pick up) all but one after school.

She has said no to this offer 3 times.

I instructed the daycare that I will only be paying 50% of the full day daycare. It was accepted for one month.

She took our separation agreement to the daycare. They have since stated that they will be billing me 50% per our agreement for "daycare".

My argument is that before/after school care:
#1 - is not daycare
#2 - Is subject to right of refusal section
#3 - Not up to the daycare to try and enforce a separation agreement.

The daycare has stated they will not change billing unless I have a court order or mutually signed amendment to agreement.

Any thoughts are greatly appreciated
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Old 10-12-2012, 11:07 AM
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Hi,

1.Before/after school is daycare - just part-time vs full-time.

2. I have a few thoughts on this:
Is your current wife on Mat leave? Could she be worried about losing her spot when/if your wife returns to work?
She may not want to set a precedent that you have the children during her time.
As your user name suggests it is possible she 'can't stand you anymore' either and wants to limit her needing to deal with you during her time.
On a side note Socializing with their school friends/peers one out of every two weeks is probably good for the kids in the long run. We learn most of our life skills in these settings

3. The daycare just wants to be paid. They don't want to be in the middle of two parents in conflict. By holding you both to the SA they have a way to stay neutral.

Last edited by TiredOfTheDrama; 10-12-2012 at 11:08 AM. Reason: stated girls - don't know the gender.
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Old 10-12-2012, 11:27 AM
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Thanks for the reply,

My current spouse simply is not on mat leave. our schedules simply allow us to cover the before and after school on all but one after school day.

My only real question is if I am able to care for the children and she simply refuses, how should I be expected to pay for it? It is less than the 6 hours quoted.... I'm sure she is tired of me too.

There is no need to deal with each other when exchanges happen. the children can let themselves in/out of the house without assistance.

the before school care is for approximately 30 mins and the after school is about the same..... This is after a full day of play.

I was more or less hoping that the quoted section could be taken as if she needs babysitter for under 6 hours, she'e responsible.

Thanks again for your reply!
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Old 10-12-2012, 11:33 AM
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Question: What happens on that one day that neither yourself or your wife are available? Will the daycare hold a spot for 2 children for 4 days a month when they could fill those spots with children that they will receive top dollar for?

Maybe someone can state otherwise but I don't believe this falls simply under babysitting ...
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Old 10-12-2012, 11:54 AM
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Quote:
Originally Posted by cantstandheranymore View Post
It is in the children's best interest to spend time with the other parent than with a third party. Accordingly, if either of them cannot care for the children, each party will have the right of first refusal if he/she is not able to personally care for the children for a period of more than 6 hours on the day that they are scheduled to care for the children due to Cantstandheranymore and her being required to work on the day he/she is scheduled to care for the children. Subject to the above, each party may use third party caregivers if the period he/she cannot care for the children is under 6 hours due to work commitments or the other party does not accept the right of refusal." (abridged)
General observation not directed at the OP but, to all people who are entering into an agreement:

Why does it take so many words to describe what right of first refusal is. This paragraph self contradictory and a judge would have a hell of a time trying to enforce ANYTHING from this paragraph in my honest opinion. The whole "subject to the above" clause makes it nearly unenforcable. Furthermore, everyone should consider the wise words of Gary Direnfeld, MSW, RSW when even contemplating putting in a "right of first refusal" clause in a separation agreement.

They are only about "control" and often lead to just more conflict.

Your Social Worker - Gary Direnfeld, MSW, RSW

Quote:
Originally Posted by cantstandheranymore View Post
She took our separation agreement to the daycare. They have since stated that they will be billing me 50% per our agreement for "daycare".
Really? They want to do this? Do you have a written agreement with the daycare regarding their services and care of the children?

This may create conflict with the daycare but I would send a registered letter upon the daycare requesting the following disclosure:

(a) A copy of their license to operate a day nursery or a private-home day care agency under the Day Nurseries Act of Ontario.

(b) Evidence that the Operator is maintaining compliance with the standards set out in Ontario Regulation 262 under the Day Nurseries Act at all times.

Under the Nurseries Act of Ontario it is an offence to establish, operate or maintain a day nursery or private-home day care agency without a licence. On conviction, the fine is up to $2,000 for each day the offence continues, or
imprisonment for a term of not more than one year, or both.

http://www.edu.gov.on.ca/eng/parents...package-en.pdf

The daycare can't bill you for time that you are not using nor have agreed to use. If they send you a bill you may be able to file a detailed complaint against them possibly. It would be incredibly unprofessional of them to make a billing decision from a separation agreement.

Day Nurseries Act, R.S.O. 1990, c. D.2

Day Nurseries Act - R.R.O. 1990, Reg. 262)
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Old 10-12-2012, 11:58 AM
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Quote:
Originally Posted by TiredOfTheDrama View Post
3. The daycare just wants to be paid. They don't want to be in the middle of two parents in conflict. By holding you both to the SA they have a way to stay neutral.
Actually, this is really not their place to do this or demand payment from the other parent. The separation agreement is not theirs to enforce and I am of the opinion if they bill this parent for time outside the agreement reached WITH THE DAYCARE then they are in breach of their contract.

They should be collecting the money from the other parent who *uses* their services and should be asking that parent to deal with the matter in the family courts.
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Old 10-12-2012, 12:02 PM
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Thanks everyone for the input!

I will be making a motion to the courts to change the section and hopefully have them define "daycare" in my agreement.

The Daycare has been sent the right of refusal section for them to address with their counsel (it is a registered daycare throughout the country that operates out of schools).
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Old 10-12-2012, 12:15 PM
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Quote:
Originally Posted by Tayken View Post
The separation agreement is not theirs to enforce and I am of the opinion if they bill this parent for time outside the agreement reached WITH THE DAYCARE then they are in breach of their contract.
I don't understand what you are saying in the bolded section:
How are they billing outside the agreement reached with the daycare? Do you mean outside of the usual s7 process? (If this was my situation I would absolutely be keeping a receipt for every payment made)

I agree she should be paying the full and requesting the amount through s7, my point is the daycare most likely just doesn't want to be in the middle and just wants to get paid ... is it fair for them not to be able to make payroll because one parent decides to play games? They are a business and I'm sure a majority of their clients are single/separated/divorced parents and have set up a standard to deal with this.
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Old 10-12-2012, 01:55 PM
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Usually, with daycares/afterschool care one pays for the "spot" whether it is used 10% or 90% of the time, unless parents can come up with shared arrangement with other parents, whereby the spot is shared between two children.

The parents would then split the full cost proportionately to their incomes.But in this case there is an agreement that the cost would be shared 50%.

A question to clarify: what grounds would there be for a parent not to comply with child care as a section seven expense as previously agreed upon between the parties.

Last edited by Nadia; 10-12-2012 at 02:03 PM.
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Old 10-12-2012, 02:45 PM
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Quote:
Originally Posted by cantstandheranymore View Post
Thanks everyone for the input!

I will be making a motion to the courts to change the section and hopefully have them define "daycare" in my agreement.

The Daycare has been sent the right of refusal section for them to address with their counsel (it is a registered daycare throughout the country that operates out of schools).
I think this is your best course of action.

I don't understand why people play games, seriously who has time to spend that much energy on someone you removed from your everyday life?

I haven't held my ex to the letter of our agreement on many issues over the years & honestly it does bite me me in the ass when he decides to be loosey goosey with the more important areas. I can admit I'm a push over, with a philosophy of just shut up and deal with what he dictates to me how things are going to go instead of stirring the pot. (thanks to this forum I'm finally growing a back bone)

Showing her you aren't willing to put up with her BS now will probably save you years of headaches in the long run.

Good luck cantstandheranymore!
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