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  • 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

  • #2
    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, 11:08 AM. Reason: stated girls - don't know the gender.

    Comment


    • #3
      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!

      Comment


      • #4
        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 ...

        Comment


        • #5
          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

          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)

          Comment


          • #6
            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.

            Comment


            • #7
              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).

              Comment


              • #8
                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.

                Comment


                • #9
                  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, 02:03 PM.

                  Comment


                  • #10
                    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!

                    Comment


                    • #11
                      Originally posted by TiredOfTheDrama View Post
                      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)
                      The agreement (separation agreement) is between the two parties who formed the agreement. The daycare is not a party to the agreement and cannot and should not be attempting to leverage the agreement between to parties in an agreement for which they are NOT a party to in order to bill someone.

                      The simple fact driving the comment in bold is that they are not the Superior Court of Justice, Family Law for which governs the agreement. As a third party they cannot rely upon an agreement for which they are not a party to the agreement. They cannot use the agreement reached in a family law matter to enforce the collections of money or even interpret the separation agreement.

                      A simple stop payment could be made by the OP to the daycare and a complaint filed regarding the conduct of their business with the proper governing authorities under their governing Act.

                      A reminder to their legal counsel that should they attempt to collect moneys on their interpretation of a separation agreement by which they were not a party to the matter as a signatory to the agreement may possibly constitute fraud.

                      Originally posted by TiredOfTheDrama View Post
                      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 that they are attempting to collect moneys from an agreement made for which they are not a party to? We could come to an agreement by which you state you will pay my cell phone bill right now TiredOfTheDrama. I can then provide this agreement we made, independent of their contractual obligations made to me as the service user, and do you think the provider would actually attempt to collect the payment based on our agreement?

                      Originally posted by TiredOfTheDrama View Post
                      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.
                      They should be conducting their business in accordance with the agreement made between their clients and their organization and not an agreement made for which they are not a party to.

                      This is why a landlord has to be a party to a sublease and consent (an informed party) to any sublet of their property in accordance with the Residential Tenancy Act as a side example:
                      95. (1) Subject to subsections (2), (3) and (6), and with the consent of the landlord, a tenant may assign a rental unit to another person. 2006, c. 17, s. 95 (1).

                      Residential Tenancies Act, 2006, S.O. 2006, c. 17

                      If we allow private corporations to willy nilly bill anyone for any reason for which they haven't directly contracted (or agreed to) their services it would be utter anarchy.

                      The right thing for the daycare to do is:

                      1. Request payment from the requesting parent for their services.

                      2. Inform the other parent that they are a non-party to the agreement (separation agreement) and have no authority to collect money for services rendered.

                      3. To inform the requesting parent to bring the matter to the proper court of competent jurisdiction to collect any money's rightfully owed to them by the other parent for their services rendered in accordance with S.7 of the Child Support Guide Lines and the written agreement made between both parties for which they are not a party to.

                      4. That in the event they do not receive proper and prompt payment in full they will not be able to render the services of before and after school daycare as requested.

                      5. That they are not a party to the matter, are an independent corporation and will not become involved in a family law dispute.

                      Good Luck!
                      Tayken

                      Comment


                      • #12
                        Originally posted by cantstandheranymore View Post
                        I will be making a motion to the courts to change the section and hopefully have them define "daycare" in my agreement.
                        Frivolous to do so in my opinion and not the best course of action you could take. Talk to a lawyer prior to doing something this aggressive.

                        My recommendation would be to make a formal offer to settle on the matter in accordance with Rule 18 of the Family Law Rules regarding this matter and an update to the paragraph you sited.

                        In fact, I strongly believe that should you take something so minor on motion you will be slaughtered by a judge for doing so and the first right of refusal clause will be removed from the agreement and a new order will be put forward. You would also be responsible for costs on a full and substantial basis for possibly bringing such a frivolous action before the court.

                        Your best way to solve this is through negotiated settlement in accordance with Rule 18 prior to any action before the court. The offer should be REASONABLE and in the best interests of the child and both parties. You have to seriously consider compromise on the matter.

                        Court should be a **LAST RESORT** when all other attempts to negotiate settlement in a matter have failed. They should not be the first place you run to solve problems.

                        Originally posted by cantstandheranymore View Post
                        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).
                        Would it happen to be PLASP?

                        Our Mission

                        Comment


                        • #13
                          I have made offers twice before to look after kinds pin lieu of paying daycare. She simply dismisses it as "not in the best interest of the children". with no explanation.

                          It is a battle over any single issue with her, I try and take the high road...... but I am far from perfect.It has been three years of ongoing issues.

                          I am at my wits end. Hence the reason for court motions, Of which there will be more than one in her future.

                          The daycare is not PLASL..... But Im pretty sure there was a song about it made in the 70's(fancy dance to go with it too)

                          Comment


                          • #14
                            Originally posted by cantstandheranymore View Post
                            I have made offers twice before to look after kinds pin lieu of paying daycare. She simply dismisses it as "not in the best interest of the children". with no explanation.
                            An email with a recommendation to the other parent is NOT an offer to settle by the way. I hope this is not what you are suggesting is your offer to settle.

                            You need to:

                            (a) re-write the wording of the above mentioned paragraph
                            (b) write a structured offer to settle
                            (c) serve it in accordance with the requirements of Rule 18.
                            (d) notify the other party that the offer is being made in accordance with Rule 18 of the Family Law Rules explicitly
                            (e) you need to put a time frame explicitly in the covering letter as to the terms of the offer (how long it is valid for etc...)

                            Originally posted by cantstandheranymore View Post
                            It is a battle over any single issue with her, I try and take the high road...... but I am far from perfect.It has been three years of ongoing issues.
                            OFFER TO SETTLE RULE 18.

                            Not used enough or cited enough properly.

                            Dear Lenard J. Crabs:

                            Please find attached to this correspondence marked as schedule "A" a formal offer to settle regarding the matters of after school care for your clients consideration.

                            This Offer to Settle is being made in accordance with Rule 18 of the Family Law Rules.

                            Please kindly review the Offer to Settle, attached as Schedule "A", made in accordance with Rule 18 and served upon your office with your client at your earliest convenience.

                            Thank-you for taking the time to review my correspondence and offer to settle regarding this matter with your client.

                            Yours very truly,
                            <your name>

                            Originally posted by cantstandheranymore View Post
                            I am at my wits end. Hence the reason for court motions, Of which there will be more than one in her future.
                            There will be an order staying all motions without leave of the court in your near future and if you motion frenzy the matters a possible "vexatious litigant" finding against you by the court and numerous costs orders against you.

                            I caution you on the improper use of motions. You do too many and not resolve issues you will be on a fast-tract to the trial list for the next sitting (January 2013) and a world of problems.

                            Comment


                            • #15
                              Yes, I do tend to rush through things when typing. Not one of my best qualities.

                              Thank you for the all of the information from everyone. Its clear I need to sit back and get some further guidance.

                              Comment

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