COURT FILE NO.: FS-13-77105-00
DATE: 2014-02-28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MERINA SAGE v. JAMES SAGE
BEFORE: Barnes J.
COUNSEL: Corrine M. van der Burg, for the Applicant Mahzulfah S. Uppal, for the Respondent
HEARD: October 22, 2013
ENDORSEMENT
INTRODUCTION
[1] The applicant, Merina Sage, and the respondent, James Sage, have two children. Aiden Sage born August 19, 2009, and Hannah Sage born August 3, 2011. Ms. Sage and Mr. Sage are separated. Ms. Sage and the two children live with Susan Pereira. Ms. Pereira is Ms. Sage’s mother.
[2] Ms. Sage seeks an order for Mr. Sage to pay his proportionate share of child care expenses. Ms. Sage wishes Ms. Pereira to provide the child care services and be reimbursed for those services.
[3] Mr. Sage is prepared to pay for child care services provided by a day care facility. He is not prepared to pay for child care services provided by Ms. Pereira.
[4] Mr. Sage seeks increased access to the children and a summary judgment for equalization.
[5] Upon reading the material filed and hearing the submissions of counsel, I order that James Sage shall pay his proportionate shares of child care expenses provided by Susan Pereira; the child access order of Edwards J., dated April 16, 2013, remains unchanged; James Sage shall have the right of first refusal to care for the children during March break; Merina Sage shall apply for day care services and enroll the children in day care services unless the parties agree otherwise or this court orders otherwise; the parties shall consult each other in the selection of day care services and in the case of disagreement, Merina Sage, shall select the daycare facilities. The equalization issue is reserved for trial or other proceeding.
ISSUES
[6] Mr. Sage did not explore his motion for summary judgment on the issue of equalization. The issue of equalization is thus reserved for trial or other proceeding. This leaves two issues:
(a) Is the maternal grandmother (Susan Pereira) entitled to payment for the child care services?
(b) Should Mr. Sage’s access to the children be increased?
Is the maternal grandmother (Susan Pereira) entitled to payment for the child care services?
[7] Section 7(1)(a), (2) and (3) of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) sets out the statutory scheme for assessing whether and how child care services should be paid.
[8] The section states:
7 (1) 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 in 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 separation:
child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment.
(2) The guiding principle in determining the amount of the expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
[9] Child care services provided by certain family members are implicitly expected to be provided without remuneration: McLaughlin v. McLaughlin (1998), 1998 CanLII 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.). In McLaughlin, the British Columbia Court of Appeal dealt with a circumstance where a father sought to avoid paying for child care expenses because there were other family members who could provide the services for free.
[10] The crux of Mr. McLaughlin’s argument was that his two children, ages 14 and 16, could provide child care services for his younger son Sean, therefore, there was no need for child care expense to be incurred. The chambers judge had ordered Mr. McLaughlin to pay his proportionate share of $224 per month.
[11] The British Columbia Court of Appeal ruled that the chambers judge’s order was reasonable in the circumstances. Those circumstances included the income of the parties and Ms. McLaughlin was working and it was in the best interests of Sean that child care expenses should be incurred. The appeal court acknowledged that there may be circumstances where “families simply have no financial alternative but to call upon their other children to assist in providing child care to younger members of the family. This is not one of those cases”: McLaughlin, at para 93.
[12] McLaughlin implicitly stands for the proposition that there are circumstances where the provision of child care services, by family members, can reasonably be expected to be free, for example, older siblings taking care of a younger sibling. This is implicitly acknowledged in Aukstuolyte v. Balchun, 2005 CanLII 27896 (ON SC), at para 49, where Campbell J. relies on McLaughlin to conclude that “there are cases which implicitly acknowledge that child care services provided by family members is considered to be unremunerated”.
[13] In Aukstuolyte, the wife wanted the husband to make a notional contribution of $250 per month towards child care expenses. The child care was to be provided by the wife’s mother. Campbell J. rejected this claim on the basis that it was inexact and speculative in the face of s. 7(1)(a) of the Guidelines. Aukstuolyte stands for the proposition that inexact and speculative claims for child care expenses do not qualify for reimbursement under the Guidelines.
[14] The effect of McLaughlin is that child care services provided by a family member will usually not attract any remuneration, unless the circumstances dictate otherwise. To determine whether the circumstances warrant remuneration and financial contribution by the parents, the overriding consideration is whether, in all the circumstances, child care provided by the family member, is in the best interests of the children and whether it is reasonable to provide financial compensation, to the family member, for providing those services.
[15] Such an analysis warrants the consideration of a series of factors, some of which include:
(a) Why is the child care service necessary?
(b) Is it in the best interest of the child for child care services to be provided by the family member?
(c) Was child care provided by the family member prior to separation?
(d) Did the family member receive any compensation for child care services provided prior to separation?
(e) Will the child care services be provided solely by the family member or will there be other persons assisting with the activity?
(f) Will the family member provide child care services as part of normal, inevitable, family interaction or do special arrangements have to be made to facilitate the activity?
(g) Is the family member foregoing employment or other activity to provide the child care?
(h) Is the provision of child care the dominant activity or is it ancillary to normal, inevitable family interaction?
(i) Does the family member have some special child care qualifications?
(j) What type of child care services will be provided? Will the services be the same as a structured day care service or will the service be similar to a babysitting service?
(k) Will the provision of child care service be the dominant service or will it be intermingled with caring for other family members?
(l) How were the amounts charged for child care expenses arrived at? Is it based on speculation or based on some objective basis?
(m) What is the nature of the financial relationship between the parties?
(n) Given the nature and circumstances of the family relationship, is financial compensation a reasonable expectation?
(o) Are the time periods for which financial compensation is expected defined or open-ended?
(p) Are the child care expenses claimed reasonable in all the circumstances?
(q) What is the ability of the parents to pay for the child care expenses?
(r) This is not an exhaustive list; the circumstances of each case will dictate which constellation of factors will be determinative.
ANALYSIS
[16] Ms. Sage is employed. Her ability to earn an income increases the financial resources available to pay for the needs of the children. Increased financial resources is thus in the best interests of the children. In order to facilitate such employment, suitable child care services must be provided.
[17] The parents have the means to pay their proportionate share of reasonable child care expenses. Reasonable child care expenses are assessed in the context of prevailing market conditions, the needs of the children and the incomes of the parents.
[18] Ms. Sage’s 2010 income is $23,641.80. Mr. Sage’s 2012 income is $53,726. The parties agree that Mr. Sage’s proportionate share of child care expenses is 67.4 per cent and Ms. Sage’s proportionate share is 32.6 per cent.
[19] Ms. Sage works 35 hours a week. Her schedule for 25.5 hours of work is: 2:30 p.m. until 11:00 p.m. on Wednesday evenings; 6:00 am. to 2:30 p.m. on Thursday evenings; and 7:30 a.m. to 4:00 p.m. every Saturday. The other 9.5 hours of work vary on a weekly basis.
[20] Ms. Sage and the children live with Ms. Pereira. Given the ages of the children and the unpredictable nature approximately of at least 10 of Ms. Sage’s weekly work hours, I am satisfied that it is the best interests of the children to have child care facilities, which provide significant flexibility to accommodate these variations in the work schedule.
[21] In addition, Ms. Sage’s work hours (25.5) are quite irregular with different start and end times for Wednesday, Thursday and Saturday. This increases the need for additional flexibility in child care provision hours.
[22] Mr. Sage has indicated that he is prepared to care for the children when Ms. Sage is unavailable to do so. There is no basis to conclude that Mr. Sage is not a good parent and there is no reason why this would not be a feasible alternative if there are no other options more conducive to the best interests of the children.
[23] Aiden is just over four years and Hannah just over two years. Given the variations and unpredictability in Ms. Sage’s work schedules and their tender ages, a predictable and least disruptive child care schedule would be in the children’s best interests. I am concerned that an erratic transfer between Mr. Sage and Ms. Sage’s residence may not be the very best option for the children in the face of a less disruptive alternative.
[24] Ms. Pereira lives in the same home as the two children and the provision of child care services by her, when Ms. Sage is working, would provide the least amount of disruption to the children’s routine and will be in their best interests. This is balanced very carefully with the fact that sufficient access to Mr. Sage is also in the children’s best interests.
[25] Ms. Pereira provided child care services prior to separation and did not request or receive compensation; this is an important factor to consider but is not determinative on these facts. Ms. Pereira was working at the time she was providing those child care services for free.
[26] There is a dispute as to whether Ms. Pereira left her job in order to provide child care services or was laid off. Regardless of the reason for Ms. Pereira’s unemployment, if she is foregoing gainful employment for the express purpose of providing child care services, she is entitled to compensation for providing those services.
[27] The express purpose of providing child care means that the child care service is the dominant activity in the course of the familial interaction between the grandmother and her grandchildren. In effect, the familial relationship is the subsidiary activity. Thus, the circumstances should be such that the family member is paid for the express purpose of providing day care and not for caring for the children in the course of her inevitable interaction with the children as their grandmother.
[28] In practical terms, day care service provided, for remuneration, must be targeted to the children both in time and scope. In this case, there is no basis to conclude that Ms. Sage cannot care for her children when she returns home. It is reasonable to expect that once Ms. Sage returns home, Ms. Pereira’s interaction with the children is transformed from the dominant activity of being a child care provider, which can attract remuneration, to the new dominant activity of being a grandmother, which does not warrant any remuneration.
[29] The times when remuneration for child care services can be provided is thus limited to Ms. Sage’s hours of work. Ms. Sage has tried to bring some objectivity to calculating the weekly amount of remuneration that must be paid to Ms. Pereira. Ms. Sage has researched hourly and weekly rates of day care facilities and concluded that Ms. Pereira’s fee of $350 per week, for two children, is warranted. Unlike in Aukstuolyte, Ms. Sage’s figure, for child care services, is not speculative but based on research of the prevailing cost of private day care.
[30] In her affidavit, Ms. Sage provided private day care daily rate comparisons as follows:
(a) Day care 1: infant (Hannah) $150 per week ½ day; full day kindergarten/Grade 1 and up (Aiden) $100 per week;
(b) Day care 2: infant (Hannah) $565 over two weeks; pre-school (Aiden) $466 over two weeks; and
(c) Day care 3: toddler (Hannah) $450 per week; pre-school (Aiden) $409 per week.
[31] Ms. Pereira cannot be paid at the same rate as a day care facility. She is not a trained day care provider. There is a degree of comingling of the activity of grandparenting with that of a child care provider. Certainly, it is not appropriate to compensate Ms. Pereira for her activity as grandmother, which includes a component of child care; the children already live with Ms. Pereira and therefore, a portion of this child care would have been provided in any event.
[32] This is an example of the comingling of the familial interaction with the provision of child care. Such comingling will typically not warrant compensation, however, Ms. Pereira has foregone gainful employment to care for the children. On these facts, the presence of other persons, in the home, who may also participate in the child care activity or require Ms. Pereira’s attention, is not determinative. This does not detract from the fact that Ms. Pereira’s primary function will be the care of the children. The test is whether the provision of child care is the dominant activity. This is fact-specific.
[33] Ms. Pereira has forgone seeking other employment to care for the children. Therefore, subject to the limitations imposed below, the dominant activity has become providing child care and the dominant relationship between the parents and Ms. Pereira is a financial one instead of a familial one.
[34] The financial relationship becomes the dominant relationship when Ms. Pereira is caring for the children while Ms. Sage is working. Thus, compensation is limited to child care provided when Ms. Sage is working.
[35] The amount of compensation vis-à-vis day care facilities shall be discounted to account for the fact that Ms. Pereira is not a trained day care provider. The proposed $350 per week is already discounted to account for this; however, a further discount to $325 per week is warranted to account for this difference. This remuneration is for child care services provided over a 35-hour work week.
[36] There shall be no special child care rates for child care provided during March break, on PD days or when either child is ill, should these days or events fall outside Ms. Sage’s 35-hour work week. As the children’s grandmother, it is not unreasonable for Ms. Pereira to choose to care for her grandchildren when they are sick, on a PD day or during March break. In fact, any of the parties can choose to pay her for that, however, when such activity falls outside the 35-hour work week, the child care activity begins to blend significantly with her role as a grandparent, and under those circumstances, does not qualify as the type of child care expense subject to proportionate parental contribution under s. 7(1)(a) of the Guidelines.
[37] Mr. Sage shall have the right of first refusal to care for the children during PD days or March break. Ms. Sage always has the option of seeking Mr. Sage’s assistance as the circumstances warrant.
[38] The net total cost of the child care expense is $1,366 per month or 16,390 per annum. Day care expenses include all associated normal expenses, including food. Assuming that Ms. Sage pays for the child care expense upfront, at 67.4 per cent, Mr. Sage’s proportionate monthly share is $921.
[39] Aiden is four years old. There is no reason why enrolling him in day care should not be explored. Mr. Sage requests that he be enrolled in day care.
[40] By March 15, 2014, Ms. Sage shall apply to enroll Aiden in day care and shall apply for a day care subsidy. Ms. Sage shall provide Mr. Sage proof that the applications have been made by March 17, 2014.
[41] Should Aiden be accepted into day care, the parties shall consult each other in the selection of the appropriate day care. If the parties are unable to agree on a day care, Ms. Sage shall select the appropriate day care. This is because the primary residence of the children is with Merina Sage at this time. It is also open to the parties to agree that Ms. Pereira continue to provide child care services.
[42] Each parent shall pay their proportionate share of child care expenses at a rate proportionate to their incomes.
[43] Should the cost of day care services be excessive, in relation to the cost of child care provided by Ms. Pereira, either party may seek an order from this court that Ms. Pereira continue to provide child care services.
RETROACTIVITY
[44] Prior to the couples’ separation, Ms. Pereira provided child care services without remuneration. In her affidavit, Ms. Pereira explained that this was because she was employed at the time. Ms. Sage consulted Mr. Sage on the issue of child care expenses, but the parties were unable to agree, necessitating the motion before this court in October 2013. Given the previous history of free child care provided by Ms. Pereira, the issue warranted clarification by this court, therefore, Mr. Sage’s proportionate share of child care expenses take retroactive effect on October 1, 2013.
Should Mr. Sage’s access to the children be increased?
[45] On the evidence put before this court, there is no basis to conclude that Mr. Sage is not a good father. Hannah is over two years old and there is no reason why she cannot be cared for by Mr. Sage overnight. It is in the best interests of the children to have increased access to their father.
[46] Edwards J. has already increased Mr. Sage’s access to both children commencing November 29, 2013. Edwards J. has ordered that Mr. Sage have overnight access to both children on alternate weekends. There is no need to change Edwards J.’s access order, all provisions of which remain in effect.
COSTS
[47] Ms. Sage successfully obtained an order for Mr. Sage to pay his proportionate share of child care services provided by her mother, Ms. Pereira. The parties may submit a cost outline no more than two (2) pages in length within 20 days from the date of this order.
Barnes J.
Released: February 28, 2014
COURT FILE NO.: FS-13-77105-00 DATE: 2014-02-28
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: MERINA SAGE v. JAMES SAGE
BEFORE: Barnes J.
COUNSEL: Corrine M. van der Burg for the Applicant Mahzulfah S. Uppal, for the Respondent
ENDORSEMENT
Barnes J.
Released: February 28, 2014