Court Cases & Orders Separation Agreements

How Much To Pay for Babysitting? Make Sure Your Separation Agreement is Clear

How Much To Pay for Babysitting? Make Sure Your Separation Agreement is Clear

A very recent Ontario Court decision examined the agreement between separated parents on how to split daycare costs, and serves to illustrate the importance of ensuring that such negotiated agreements anticipate changes to the parties’ circumstances.

In Rafferty v. Huibers, the mother and father had a child together, a boy aged 9. The father earned about $32,500 per year, while the mother earned about $18,000. After separation, they shared joint custody, with the child living primarily with the mother. The boy had Aspberger’s Syndrome, and required daycare services costing $320 a month. The parents had agreed, as part of a prior consent court order, to evenly split child care expenses of about $320 per month, even though there was a significant disparity in their incomes. Moreover, the mother was obliged to provide monthly daycare receipts to the father, but these were unrelated to the amount he was ultimately required to pay.

Unfortunately, the father lost his job in early 2010, and his child support obligation was accordingly adjusted by the court a few months later. No change was made to the allocation on babysitting costs at that time, however.

Then in March of the following year – having been unsuccessful at finding work locally – the father decided to move from Ontario to British Columbia to look for a job. The issue then arose as to how to interpret and apply the parties’ agreement on sharing daycare costs in light of these changed circumstances; the matter was brought before the court for its consideration.

Naturally, the court looked to the parties’ consent agreement to see what they might have intended. Unfortunately, the agreement itself somewhat contradicted the manner in which the parties had been conducting themselves in actuality, and there was no evidence presented to the judge at trial to explain how the agreement had been reached. This made it difficult for the court to discern the parties’ true intentions at the time.

Specifically, the agreement seemed to provide for the father to pay a set amount of $160 per month, with no provision for a periodic adjustment. In real life, however, they both acted as though they the babysitting costs were a variable amount, with the mother being obliged by agreement to provide the father with monthly daycare receipts. This suggested that they both envisioned that the father’s share of daycare expenses would fluctuate as a proportion of his actual income.

Faced with this discrepancy, the court found that the mother and father must have intended a compromise to the effect that the father would pay a fixed sum per month for special expenses, even though that might be more (or less) than his proportionate share of the actual babysitting expenses for the boy. On the other hand, the fact that the mother was obliged to submit receipts suggested that the parties envisioned the father having the right to monitor whether the daycare costs were actually as high as the parties had agreed – in other words, to see whether the mutual agreement to set his share of babysitting at $160 was working out in his favour or not. The court surmised that this was intended to allow the father to apply to the court for a variation if the true costs, as evidenced in the receipts, were less than the parties expected.

Nonetheless, from a legal perspective a change to the order could only justified if the father proved there was a “material change in circumstances” since the agreement was struck. But the mere fact there might be a difference between the agreed fixed sum per month and the father’s otherwise-proportionate share of the babysitting, in and of itself, did not meet the required level of change. Indeed, the mother and father had clearly foreseen that special expenses such as babysitting might not be exactly $320 per month. The fact that their agreement did not include a provision calling for a periodic review suggested to the court that there needed to be something more than just any difference between the actual babysitting costs and what the father was required to pay.

However, the father’s job loss in 2010 did amount to the required “material change in circumstances”, since even after finding work in B.C. his annual income was now $10,000 less than it had been before. That change was unforeseen and significant (and indeed was what prompted the father to file a motion to change), and meant that the agreement requiring the father to pay $160 per month was no longer to the father’s advantage.

In the end, and with the current changed circumstances including the significant drop in the father’s income, the court found legal justification to reconsider how daycare costs were to be apportioned between these parents.

The court then turned to the question of how the original order should be varied as a result. It rejected as hearsay the father’s attempts to provided internet and telephone search results for daycare costs in the neighbourhood (though he was invited to bring witnesses to court if he wished). It also looked at the actual arrangement that was in place for the boy, although in this regard it discounted some of the mother’s evidence as inconsistent and unreliable, pointing out she had failed or been late to provide some of the babysitting receipts, and had been uncooperative with giving the father access, as had been required of her under the agreement.

In the end, using rough calculations, the court determined that the father should have paid slightly more than $160 per month once he lost his job, and that this was a reasonable quantification of his share of the babysitting expenses. His share should be 61.5 percent and the mother’s should be 38.5 percent. Moreover, going forward it was appropriate and in the boy’s best interests to implement a court-imposed proportionate payment scheme, while recognizing that this might mean that the father’s share would be higher or lower than the current $160 per month. However, the court left it open to the parties to negotiate a fixed sum per month as the father’s share, by way of a Consent Motion to change the court’s order.

The case highlights the importance of ensuring that any negotiated settlements of the issues between separated parents are clearly expressed, and that they anticipate all possible turns of events (such as job loss and relocation), by making provision for how child support obligations may change in these events.

For the full text of the decision, see:

Rafferty v. Huibers, 2012 ONSC 127

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.