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  • pre and after school care

    I am not surprised but my ex informed me that they are seeking expenses from me for pre and afterschool child care. 50/50 custody and access.
    I have problems with this.

    I am available and live beside the school; so it is not the co-operative thing to do. She also lives 5 minutes from the school.

    Her work will allow her to care for the child when she is working from home; she is working from home.

    During COVID her work has definitely accepted that parents have kids. They can make up worktime after work or simply work regular hours and they don't care.
    I found out that for the last 6 months she has had someone else take care of the child while she is at home on the job.


    She may have also signed her up for 7 day a week care; care I would never use.
    She just doesn't want to care for the child; that is a personal upset; I don't know if the helps in court.

    What are the legal obligations here?

  • #2
    You are making an assumption she does not want to care for the children and that needs to stop immediately. You don’t know her reasons nor is it any of your business. Child care (especially before and after school care) is hard to find and can’t be a one off. If she needs child care to work it is a section 7 expense.

    Not to mention what she does on her time is none of your business. The same as what you do on your time is none of hers.

    Comment


    • #3
      Child care for employment purposes is an S7 expense. Presumably you will ask for receipts, and you will have to pay for your proportionate share. I would not waste time disputing this, you will lose.

      Also, do not argue yet about paying for child care on days the kids are with you. Get the receipts first. Depending on what they say you can determine your next steps.

      Unethical option: Hire some "daycare" yourself and have her pay the proportionate share. Have some relaxing mornings while the help makes lunches for the kid.

      Comment


      • #4
        I am in a similar situation - my ex has to be at work at 9am, so she wants to spend money on a before-school careperson. I work from home, and can easily walk the kids to school. Instead of dropping the kids off at the care person, she can drop them off at my place. It saves money and also gives me more parenting time.

        My argument is that the before school care is no longer a necessary expense because I am offering to care for the children for free. Also, I feel that it would be in the children's best interest to be with me instead of a stranger.

        This hasn't gone to court yet, I let my ex know that she was welcome to spend her money how she wished, but that I didn't consider it a section 7 expense and would not be sharing the cost.

        Thoughts?

        Comment


        • #5
          Originally posted by DHTO View Post
          This hasn't gone to court yet, I let my ex know that she was welcome to spend her money how she wished, but that I didn't consider it a section 7 expense and would not be sharing the cost.

          Thoughts?
          If it goes before a judge, you will lose. Not only will you have to pay your proportionate amount of the child care, but you will have to pay costs as well.

          I often use words like "probably" and "likely"... as in "you will probably lose". Note that I did not use any of those qualifiers.

          Comment


          • #6
            Originally posted by Janus View Post
            If it goes before a judge, you will lose. Not only will you have to pay your proportionate amount of the child care, but you will have to pay costs as well.

            I often use words like "probably" and "likely"... as in "you will probably lose". Note that I did not use any of those qualifiers.
            I don't want to be argumentative, but section 7 (1) states:

            In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation

            The before school care expense is neither necessary, nor is it in the children's best interest. Is there any case law or precendents that state that this situation is covered under S7?

            Comment


            • #7
              Originally posted by DHTO View Post
              I don't want to be argumentative, but section 7 (1) states:

              In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation

              The before school care expense is neither necessary, nor is it in the children's best interest. Is there any case law or precendents that state that this situation is covered under S7?
              I’d also like to know why people on here are saying it’s a losing cause. Any reasons for newbies like us? It makes absolutely no sense to have strangers take care of a kid vs. their own parent if they’re available or willing to do so as it is in the best interest of the child and id imagine the kid would rather spend time with the parent. Family law is such a mess. Id personally fight it if I was in the case rather then just follow the norm. Never know til you try. Might be worth it. If you have the money of course too.

              Comment


              • #8
                The reason is you are no longer a married couple who are living together and mutually looking after the best interests of the children and family unit. You are separated and headed for a divorce. As such you each now have individual, specific, mandated access time with your children. You and your ex’s access time does not overlap. You have your time, they have their time and it’s none of your business what the other does in their time. Therefor, if your ex requires daycare in order to work and does not want you to provide that care, that is their right. During their access time they have the legal right to make 100% of the decisions about what they are going to do during that time. Daycares require a commitment of specified number of days per week which will fall into your access time as well. Your ex will need to sign up and pay for those days regardless of whose access time they fall on. You have the option not to send your child to daycare on your scheduled access days but you do not have the option of looking after your child on your ex’s access days or not paying your share of the daycare fees. Even if only one parent requires daycare in order to work, that’s all the court needs to know to consider it a necessary s7 expense. If they agree to allowing you to care for the kids instead of daycare then that’s great. If they don’t agree then it’s not going to happen. They can choose whoever they want to look after the kids on their time, be it daycare, a grandparent, a new significant other or a rodeo clown. They get to choose during their parenting time, not you. The maximum contact principle does not include you having access to your children on your ex’s parenting time no matter how logical or cost effective you might think it is.
                Last edited by Stillbreathing; 09-09-2021, 02:01 AM.

                Comment


                • #9
                  The best you can do is have your kids 50% of the time. Do what you want and please on your time, and your ex can do what she pleases on her time.

                  I do not disagree with you, as I have experienced the same junk from my ex. My ex fought tooth and nail in attempts to prevent me from having any substantive time with our kids. Render me a daddy-uncle. She fought like you would not believe with extremely elaborate court materials. She ended up losing, as the maximum contact principle prevails. The norm is 50/50 where its feasible to do so (in terms of proximity of 2 households). However, I learn from my kids that my ex is hardly around and constantly has grandparents watch the kids. So why the heck did she fight so hard against 50/50??? Why? It is because she resents me so much and treats kids as her possessions, whereby she does not want the kids to have a relationship with their dad, to love their dad, and to crave time with dad. It makes her skin crawl when kids go back to her saying they love me and have fun being with me. Many parents are blinded by trying to "hurt" the other parent that they do not realize they are actually hurting the kids. Remember, you are divorcing your ex; your kids are not divorcing their parent.

                  What you are referring to is Right of First Refusal. What this means is that IF Parent A cannot look after kids during their time, they would look to Parent B, where they recognize that its better for kids to spend time with the other parent that with strangers. ROFR only works when parents are extremely on same page and have absolutely zero resentments with one another, etc. That is pretty rare. If you went to court, right there you demonstrated you are not on same page with your ex.

                  Her time, her business. Your time, your business.

                  Comment


                  • #10
                    Thanks everyone, this makes it crystal clear. I appreciate you explaining the reasoning to me.

                    Comment


                    • #11
                      Also, just to add that ROFR does not work with parents that show any inkling of conflict. ROFR works when Parent A wants child to spend time with Parent B when they are not able to look after kids. If you went to court fighting for time, right there you know where you stand.

                      Judges rarely put in ROFR when there is any conflict. What happens is that Parent A cannot look after kid, and gets grandparent to look after them, and then makes up a story on how it was easier to just get grandparent to look after kid as they were already at the residence or some other lame excuse. Or you get a text after the fact saying "kid was sick today and stayed home from school. I got X to look after them as I thought you'd be busy".

                      Again, best you can do is 50/50 and look after what goes on during your time.

                      Comment


                      • #12
                        Yes but it is at the judge’s discretion and your feelings are not the primary factor. Please note the highlighted sections of your statement:
                        Originally posted by DHTO View Post
                        I don't want to be argumentative, but section 7 (1) states:

                        In a child support order the court [Bold]may, on either spouse’s request[/bold], provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation

                        The before school care expense is neither necessary, nor is it in the children's best interest. Is there any case law or precendents that state that this situation is covered under S7?
                        Also note the rest of the law:

                        (a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

                        In a shared custody situation this *could* be debateable but are you willing to take that chance? And that chance includes at least $3000 in your legal costs plus whatever costs you may owe when you lose.

                        Not to mention that all of that law is debateable by both sides and the judge—who has years of experience and a wealth of knowledge ultimately decides. Again, are you willing to take that chance with your legal education, articling history, court experience and bar writing?

                        Daycare is a crapshoot right now as it is difficult to secure for many parents. Your ex could argue that she needs child care secured in the event either of you is not available and by showing a waiting list and/or the amount of places she called, would win.

                        Go ahead and look at canlii.org for your own case law. The people who comment on this forum have experience with the courts and have been looking at case law for at least five years.

                        Comment


                        • #13
                          Does it make any difference if you contest daycare prior to going to court? Have a motion coming up where I can take care of kids but she can’t and therefore needs daycare. She moved to another city and just want to be close to her work. She’s setup status quo per se even though I said I don’t agree with it. This is before it or daycare has started.

                          Comment


                          • #14
                            Thank you for the responses. COVID is new.

                            The traditional work day where there is commute time to/from work has effectively ended for many for many years to come.

                            The employers attitude between work/life balance has as well; they are flexible. A 10 year old can do homework or play while their parent works at home so why the need for daycare?

                            I am very flexible with changing the court ordered access to reflect a new schedule for care that still leaves it at 50/50 +- a few points.

                            I can't find caselaw on this, maybe because it is new.
                            Can anyone point me in the right direction for existing cases?

                            Comment


                            • #15
                              My understanding is that if 1 parent says they need before/after school care, then its needed. Regardless if they work from home or not.

                              Your ex may say they need full 100% concentration until 5pm and then want to leave their home workspace and go pick up kid from after-school care. That would be totally legit and hold up in court. You are not in a position to start making assumptions about your ex's employer's viewpoints on work/life balance or their flexibility. If your ex says she needs before/after school care, that is her call and judgement. You would have a hard battle to fight it.

                              The one thing you could challenge is the extravagance of before/after school care, if that is being considered. For example, your ex may say that it must be at X location at $800/month, whereby there is a perfectly good alternative option nearby at $300/month. That you could argue. But not whether or not it is actually needed in light of your ex working from home.
                              Last edited by Brampton33; 09-10-2021, 10:21 AM. Reason: added statement about challenging cost of care

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