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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

Supreme Court of Canada Curtails Ability to Change Spousal Support Agreements

Supreme Court of Canada Curtails Ability to Change Spousal Support Agreements

In a decision rendered in the past week, the Supreme Court of Canada has reinforced the desire for predictability and certainty in freely-negotiated spousal support agreements between divorced couples, and confirmed that they should be varied only in specific narrow circumstances.

The Court heard appeals in two matters: L.M.P. v. L.S. and R.P. v. R.C., both of which emanated from the Quebec Court of Appeal. In each case, the respective spouses had negotiated spousal support agreements which had been embodied in formal court orders several years previously.

In the first case, the couple had been married in 1988; the wife was diagnosed with multiple sclerosis shortly afterward and never worked outside the home during the marriage. When they separated 15 years later, they signed a comprehensive agreement giving the wife more than $3500 in monthly support, with no termination date. However, five years later the husband applied to have that order varied to have the support amount reduced and eventually cancelled entirely. The husband claimed that his earnings had been reduced since the time the agreement was entered into, and that his former wife should have become self-sufficient in the interim. The trial judge agreed, and ordered the support should be reduced and ultimately eliminated effective August of 2010; the Quebec Court of Appeal affirmed that decision on the basis that the wife’s failure to become self-sufficient was a “material change in circumstances” which warranted changing the original agreement.

In the second case, the couple had separated in 1974 after 16 years of marriage, and had waited another 10 years – until 1984 – to formally divorce each other. Meanwhile, the husband had been paying almost $2000 per month in child and spousal support to the wife, pursuant to the agreement they had reached at the time. In 2008, however, the now-retired husband applied to terminate his spousal support obligations based on the serious losses he had suffered due to the downturn in the stock market. The trial judge granted his request; the Quebec Court of Appeal also ordered that his payments should be gradually reduced and eventually eliminated altogether in September of 2010.

In overturning both of these appeal-level decisions, the Supreme Court of Canada confirmed the longstanding legal principle that there must be a “material change in circumstances” before a variation to such a court order is justified. For these purposes, that meant a change that, “if known at the time, would likely have resulted in different terms”. Neither of the circumstances in these two fact scenarios met the necessary threshold.

In the first case, the husband had been fully aware of the wife’s multiple sclerosis, and in dealing with various insurers and tax and pension representatives over the years had confirmed that she was unable to work. His apparent reversal to claim that she was now employable was “both unpalatable and unworthy of serious consideration”, according to the Supreme Court.

In the second case, the Court found that the husband had insufficient factual evidence to show that there the necessary material change existed. He had provided no information about whether he had sold his investments in 2008 when they declined in value, nor did he provide any evidence of his financial circumstances at the time of the original order. The Court concluded that the husband could not “cherry pick” a date on which his investments had decreased in value and claim there had been a material change in circumstances.

Ultimately, the Supreme Court found that where – as in these two cases – spouses had reached a comprehensive, final separation agreement which had been incorporated into a court order, the agreement’s spousal support provisions were to be given considerable weight in any subsequent court application to vary them.

The decision emphasizes the need for separating and divorcing spouses to consult an experienced family lawyer who will draft an agreement that will remain satisfactory even over a long period of time. This may include provisions allowing for a review of support in certain stipulated circumstances, such as retirement or significant changes in economic circumstances.

For the full text of the decision, see:

L.M.P. v. L.S., 2011 SCC 64   http://scc.lexum.org/en/2011/2011scc64/2011scc64.html

R.P. v. R.C., 2011 SCC 65   http://scc.lexum.org/en/2011/2011scc65/2011scc65.html

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com