Court File and Parties
Date: July 29, 2019 Court File Number: 97-2017 Ontario Court of Justice at Orangeville
Between: Rachel Kathleen Sauer, Applicant
and
Kyle William Herman McInnes, Respondent
Before: Justice B. E. Pugsley
Heard: July 24, 2019
Released: July 29, 2019
Appearances
Applicant and Duty Counsel: Mr. G. Wright
Respondent and Duty Counsel: Ms. A. Woodley
Endorsement
Background
[1] The parties are the parents of Liam Ronald Sauer McInnes (M)(DOB: […], 2016). They lived together for about two years but separated before Liam's first birthday.
[2] On August 3rd, 2017, the Applicant brought an Application for custody, child support and spousal support. The Respondent Answered the Application and litigation ensued.
[3] By final Minutes of Settlement the matter was settled by a consent final order made by me on March 21st, 2018. The order provided for shared custody with Liam living primarily in the care of the Applicant (mother). Child support was agreed to and a structure to deal with section 7 Child Support Guidelines (Ontario) extraordinary expenses was stipulated.
The Consent Order
[4] Paragraph 11 of the order forms the kernel of the current Motion to Change and motion for temporary relief. It is worthwhile reciting that paragraph in full:
"11. The parties shall share all Section 7 expenses mutually agreed upon in writing, including daycare required for work or school, with proper receipts from a daycare provider, medical/dental and extracurricular activities proportionate 70-30 basis with the Applicant paying 30% and the Respondent paying 70% and the Applicant shall apply for any and all subsidies relating to same. With regard to daycare, if the Applicant no longer qualifies for subsidized daycare, she shall provide written confirmation of same to the Respondent prior to registering Liam in non-subsidized daycare."
[5] Paragraph 12 of the order provided that the Applicant was entitled to the Child Tax Benefit the Universal Child Tax Credit, and to claim Liam as her dependent for tax purposes.
[6] At the time of the original litigation the Applicant had legal counsel for much of the time. When the matter was settled she was represented by Mr. Wright as duty counsel as she was in this motion. The respondent had legal counsel when the matter was originally settled.
The Motion to Change
[7] By Motion to Change issued on November 6th, 2018, the Applicant asked the court to change paragraph 11 essentially to remove any role in the Respondent in deciding when and who provides Liam's daycare, and for arrears of daycare expenses from the date when the order was made.
[8] The Respondent's Response underlines that the Applicant did not comply with paragraph 11 of the March 2018 order by seeking his consent for the daycare. He does not believe that he should pay daycare for expenses he did not approve.
The Interim Motion
[9] The Applicant moves for interim relief: see Notice of Motion dated June 21st, 2019 at Tab 25 of the Continuing Record. She asks for arrears of support in the approximate amount of $3000.00, that the consent of the Respondent to the child's future section 7 expenses be dispensed with, and that the Respondent pay his 70% share of five day per week daycare estimated at $46 per day be ordered.
Applicant's Position
[10] The Applicant's affidavit in support of the motion states that when the consent order was made it was clear that at her stage of education and work she was going to need daycare for Liam. When the original Application was made she was still in high school. She started at Seneca College in January 2019 in order to obtain a diploma in veterinary care. In the summer of 2018 before starting college she volunteered at Woodbine Racetrack to learn about caring for horses. She references this as an apprenticeship programme and it was unpaid – but her application for subsidized daycare was refused. She enrolled Liam at the YMCA daycare as paid daycare. When she started back to school the subsidy started again, but will end when her school ends.
[11] The Applicant states that she told the Respondent about this situation but he refused to help pay. He offered care by his mother or girlfriend but the Applicant states that there was no guaranty that this would be available at all times when she needed daycare and that regardless the contract with the YMCA was for five day a week daycare whether all five days were used or not.
[12] The Applicant's course ends in mid-August of this year. She hopes to be employed soon thereafter. She will continue to need daycare. She doesn't want to lose the YMCA's excellent programme. She doesn't want to have to ask the Respondent for his approval.
Respondent's Position
[13] The Respondent notes that these circumstances are exactly what was contemplated by the consent order made seven months before the Motion to Change. The parties knew that daycare was looming and deliberately set out how they would deal with that issue. Key to his view of the matter was that the parties were going to lean heavily on publically subsidized daycare.
[14] The Respondent's affidavit notes that the Applicant had subsidized daycare for Liam but lost it when she decided to do unpaid volunteer work in her hoped for future career. He has seen nothing to show that the work at Woodbine was an apprenticeship programme. He resists paying for daycare that wasn't really needed. He can't afford to pay non-subsidized daycare and proposed that his mother assist with daycare for free. On an interim basis he would be ready to contribute $150.00 per month towards whatever daycare is ordered.
[15] Although he states that no receipts were provided by the Applicant it seems that this is a red herring – the agency providing daycare is the YMCA and receipts are readily available and if not yet supplied will be immediately (and are needed for tax purposes).
Issues on the Motion
[16] The parties bring three issues to court on this motion. First, should I order, now, the payment by the Respondent of his share of the daycare provided while the Applicant was working at Woodbine? Second, should I order that the Respondent pay his share of the child care expense in December of 2018 – the time after the Motion to Change was issued and served and before the County of Simcoe daycare subsidy cut in? That is, the Respondent then knew his potential jeopardy was in issue. Third, should I order ongoing daycare contributions starting on August 16th, 2019, when the Applicant's school ends and she is either working or looking for work in the veterinary assistant field?
[17] If and when the Applicant obtains employment her own income will also likely cause the daycare sharing percentages to be revisited.
Analysis
Daycare as a Necessary Expense
[18] Daycare expenses such as those in issue here are a common and expensive aspect of raising a child even for parents who are not separated. For parents who are living separate and apart the impact may be even greater. Some relief from a tax standpoint may assist the parties however tax relief later does not help with paying daycare now. Liam won't be going to school until at least the fall of 2020 and then will likely need before or after care. This is the reality of working parents everywhere.
[19] Many parents are assisted in their child's care by family helpers. When the Applicant gets a job and her share of child care rises above 30%, such options may be more appealing. A common problem faced by working parents is that casual daycare providers often cannot replace the dependability and certainty of a good public daycare centre and may involve travel and inconvenience. Often family members fill the role of a fallback caregiver in case for example of sickness rather than the day to day routine (and expensive) care at the YMCA. Differences between the programmes offered at a public daycare provider, and the advantages to the child of such programming before entering the public school system are sometimes discussed when picking a provider.
Respondent's Financial Capacity
[20] The Respondent notes that under the current scheme proposed by the Applicant his part of the daycare costs would well exceed what he pays under the chart for child support. His fiancé and her children rely on him to help economically. Where will the money come from?
[21] Parenthetically, if the parties were raising Liam together in the same household could they have afforded to make the same daycare choices here, knowing that each Friday the YMCA would have to be paid?
The Consent Order as a Contract
[22] The parties made an informed decision in 2018 to agree on the terms by which future daycare issues would be decided. That is the contract that they asked the court to endorse. The facts behind the steps that the Applicant took and what the Respondent knew are widely disputed.
Arrears Claims
[23] If the parties cannot agree on how to split the daycare costs that the Applicant incurred before the return of the subsidy in January 2019, this motion on this record is not the proper forum to resolve the issues between the parties – a trial of the evidence when that evidence could be tested would be necessary, including the issue of the December 2018 daycare cost when the Applicant was working for no pay.
[24] If the evidence discloses that the unpaid work was in aid of her educational plan then I would expect that some contribution by the Respondent would be appropriate. It is in the interests of both parents, and Liam, that the Applicant get established in the working community as soon as possible.
Modification of Consent Terms
[25] A change to the terms by which future daycare decisions are made must also take place outside this motion for the same reason as above. It is clear however that Liam will need daycare – and hopefully very good daycare. That would seem to be a given for both sides, and the Respondent did not argue against daycare but rather the cost involved.
[26] Daycare for working parents is part of creating and raising a child together but separately. It can cost a lot of money at least until the child starts school.
[27] The Respondent has advanced no hardship claim here.
Interim Relief for Ongoing Daycare
[28] The last area of concern raised by the Applicant is the contribution of the Respondent to daycare starting next month. Care for Liam will be needed whether the Applicant is working or is looking for work. The current care provider has offered good care for him but at a price – you can't pick up and drop daycare on a whim. Once enrolled you are committed to 5 day a week daycare or Liam's spot is lost.
[29] There is uncertainty right now as to where the Applicant will get work and when, and how much she will make. A temporary order starting on August 16th, 2019, will provide the Applicant, and importantly Liam, certainty in the short term. Any order is subject to readjustment by the court later. If as she hopes the Applicant gains employment quickly the balance between the parties as to the contribution of the daycare costs will necessarily change. Discussions at the settlement conference may prove fruitful.
Costs
[30] Both parties are self-represented and will bear their own costs of this motion.
Order
[31] I therefore deal with the Applicant's motion as follows:
Commencing on Monday August 19th, 2019, and continuing until varied by further order of the court, the Respondent shall forthwith pay to the Applicant 70% of the daycare costs paid by the Applicant for the care of the child of the parties Liam Ronald Sauer McInnes (M)(DOB: […], 2016).
The Applicant shall choose the child's daycare pending further court order.
The Applicant shall forthwith provide to the Respondent a true copy of all receipts received for the child's said daycare and the parties shall share the tax relief related to the said daycare costs pro-rata between them.
The other relief claimed by the Applicant in her motion dated June 21st, 2019, is dismissed without prejudice to the Applicant seeking similar relief at trial.
A Support Deduction Order shall issue.
No costs of this motion.
Adjourned to September 25th, 2019, at 10 am for Settlement Conference as already endorsed.
Justice B. E. Pugsley