Fairleigh v. Grieser

2024 BCSC 2211 Fairleigh v. Grieser

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Fairleigh v. Grieser, 2024 BCSC 2211 Date: 20241205 Docket: E201161 Registry: Vancouver Between: Gregory Hamilton Fairleigh aka Gregory Hamilton Boner Claimant And Jenna Marie Grieser Respondent Before: The Honourable Justice Tucker Reasons for Judgment Counsel for Claimant: M. Golden Counsel for Respondent: K. Tiwana Place and Date of Hearing: Vancouver, B.C. November 19, 2024 Place and Date of Judgment: Vancouver, B.C. December 5, 2024 Table of Contents I. Introduction.. 3 II. Background.. 3 III. Evidence on Application.. 6 IV. Analysis. 8 V. Disposition.. 11 I. Introduction [1] Gregory Fairleigh and Jenna Grieser married in 2016, separated in 2020, and divorced in 2023. They share one child of the marriage ("Child"), who was born in November 2017. [2] A trial was held in October 2022. Justice Baker pronounced a final order on March 29, 2023 ("Final Order"). The reasons for judgment are indexed as 2023 BCSC 479 ("Trial Decision"). The Final Order included a prospective term requiring Ms. Grieser to pay 50% of Mr. Fairleigh's "reasonable childcare costs". [3] This application involves a dispute as to whether the childcare costs that Mr. Fairleigh seeks contribution toward under the Final Order are "reasonable". Ms. Grieser says they are not. In response, Mr. Fairleigh filed this notice of application on September 16, 2024. II.

Background [4] After the 2020 separation, the Mother moved, with the Child, to Maple Ridge, while the Father continued to reside in Vancouver. In April 2021, an interim order was made providing for equal parenting on a week on/week off schedule. [5] By trial, the Child was approaching school age. Given the distance between the parties' homes, Justice Baker found it was in the Child's best interests to move to a parenting schedule where she would be with one parent for school days, with the other having parenting time in and around weekend days. [6] The Father is a driver with Coast Mountain Bus Company. He works a compressed four-day workweek. At trial, he sought the following parenting schedule: [56] ... He proposes that he can switch his shifts at work to Thursday through Sunday, allowing him to take E.F. to school and be with her after school Monday through Wednesday, and take her to school Thursday and Friday. His mother would look after E.F. Thursday nights. Mr. Fairleigh proposes that Ms. Grieser could pick up E.F. from school on Fridays, and keep her until Sunday night. In addition, on long weekends Ms. Grieser could have E.F. for the extra days - whether they be Fridays or Mondays. He also proposes that the parties share school holidays equally. [7] The Final Order significantly aligned with his proposal: 4. The Claimant and the Respondent shall have parenting time with

the Child as follows: a. the Child shall be in the care of the Claimant from Sunday evenings until the end of the school day on Fridays provided however that if there is no school on a Friday, the Claimant's parenting time shall end after school on Thursdays; b. the Child shall be in the care of the Respondent from after school on Fridays or Thursday if there is no school on a Friday until Sunday evenings or Monday evenings if there is no school on a Monday; c. the Claimant shall have parenting time with the Child for four weeks in the summer in blocks of two (2) weeks each and the Respondent shall have parenting time with the Child during the remaining weeks in the summer; d. parenting time shall be divided equally between the Claimant and the Respondent during all other school holidays; ... [8] By the time of trial, the parties had established roughly equal incomes. Justice Baker ordered that their prospective s. 7 expenses should be shared equally. The Final Order also included terms specific to past and future childcare expenses: 6. The Claimant and the Respondent shall pay child support as follows: d. the Claimant shall pay $5,387.00 to the Respondent with respect to outstanding childcare expenses for the years 2020 and 2021; e. the Claimant shall pay to the Respondent fifty percent of her childcare expenses incurred in 2022 and 2023; f. the Respondent shall pay $5,250.00

to the Claimant with respect to childcare expenses incurred up to the date of trial; g. the Respondent is responsible for the payment of fifty percent of the Claimant's reasonable childcare costs that are incurred after the date of this trial; [9] Section 6(g) of the Final Order is at the centre of the present dispute. [10] The discussion in the Trial Decision pertaining to s. 6(d)-(g) of the Final Order provides some context for what was contemplated by "reasonable" in s. 6(g) of the order. The Trial Decision includes the following: [99] Mr. Fairleigh argues that any s. 7 expenses may only be claimed net of any subsidies, benefits or income tax deductions, relying on s. 7(3) of the Guidelines. Ms. Grieser did not dispute this position. I accept that income tax deductions received by the parties for daycare or preschool expenses are to be deducted prior to the sharing of such expenses between the parties. [100] In 2020, Ms. Grieser incurred $4,571 in daycare and preschool expenses. She received an income tax deduction in the amount of $1,719. The net expense to be split with Mr. Fairleigh is $2,852. Mr. Fairleigh was ordered to pay 54% of this amount. As I am maintaining this order of Mayer J., I order Mr. Fairleigh to pay Ms. Grieser $1,540 in relation to 2020 childcare expenses. [101] In 2021, Ms. Grieser paid $11,315 in childcare expenses, and received an income tax

deduction in the amount of $3,622, leaving a net amount of $7,693 to be split equally with Mr. Fairleigh. Mr. Fairleigh is ordered to pay $3,847 to Ms. Grieser with respect to these expenses. [102] Ms. Grieser has not clearly established the amounts she paid for childcare in 2022, nor what her income tax deduction was in relation to such expenses. Once these have been provided to Mr. Fairleigh, Mr. Fairleigh will be liable to pay 50% of these expenses (subject to any legitimate dispute he may raise as to the amounts presented). [103] In 2021, Mr. Fairleigh began a shared parenting regime with Ms. Grieser, on a week on/week off basis. Mr. Fairleigh has been able to manage his schedule to work the afternoon/evening shifts, allowing him to spend his mornings and lunch with E.F. Before he goes to work, his mother comes over to look after E.F. Mr. Fairleigh's sister also comes to help with childcare most days, relieving his mother for several hours. Mr. Fairleigh paid his mother and sister $150 each per week, on the weeks he had E.F., from May 2021 to Decembers, 2021. Beginning December 17, 2021, he increased the payments to $225 each, per week, on the weeks he had E.F. He has not been able to claim any childcare expenses on his taxes, and gets no associated income tax deduction. [104] I am satisfied that Mr. Fairleigh's childcare expenses are reasonable. At the high end, Mr.

Fairleigh paid $90 per day for afternoon and evening childcare. There is no obligation on family to provide childcare for free. If family were not available, Mr. Fairleigh would have to hire third party childcare providers. [105] Mr. Fairleigh claims total childcare expenses in 2021 in the amount of $5,100, and total childcare expenses in 2022 to the date of trial in the amount of $5,400. Ms. Grieser is liable to pay 50% of these expenses. Ms. Grieser must pay Mr. Fairleigh $5,250 in relation to these expenses. [106] Ms. Grieser is responsible for payment of 50% of Mr. Fairleigh's reasonable childcare costs from the date of trial forward. [Emphasis added.] [11] Ms. Grieser's application materials note that Mr. Fairleigh did not produce cheques or receipts in support of his childcare expenses at trial. III. Evidence on Application [12] Mr. Fairleigh has two different work schedules that will fit with the Final Order's school year parenting schedule. He can take Monday, Tuesday and Wednesday as his days off, or can take Tuesday, Wednesday and Thursday as his days off. Either way, he requires childcare to cover one working day each week when he has the Child under the school year parenting schedule. Under the first work schedule option, he needs childcare on Thursdays; under the second work schedule option, he needs childcare on Mondays. [13] Mr. Fairleigh's childcare is provided

by his mother, Gloria Boner. [14] Mr. Fairleigh required 10.5 hours of childcare (Mondays) during the school year, unless the Child is in the care of the Mother that day. By his calculation, that worked out to 37 Mondays. He claims he also needed childcare for 10.5 hours per day for eight days in August of 2024 because he was unable to align his work vacation time to cover one of his two-week summer blocks with the Child. [15] Looking at his past childcare, between April of 2021 and August of 2023, the parties had an alternate week schedule. As reflected in paras. 103-105 of the Trial Decision, Mr. Fairleigh paid Ms. Boner and his sister a combined total of $900 a month ($225 x 2 x 2 weeks) to provide childcare under the alternate week schedule. He attests that he offered to pay them $900 per month because "that was the maximum amount that I could afford" and because he believed he could not obtain childcare services elsewhere for anything less. [16] With respect to the amount he has been paying for childcare post-trial, Mr. Fairleigh attests: I have required childcare of 10.5 hours per week every Monday during the school year since September of 2023. My mother and I agreed to keep the cost at $900.00 per month. This is the maximum amount that I believe I can afford and also I do not believe that I would be able to obtain the service I require for less than $900.00 per month.

As I mentioned in paragraph 18 of my 6th Affidavit the hourly rates that are advertised at www.childcarevancouver.com and www.nannyservices.ca vary between $25.00 and $40.00 per hour. [17] Mr. Fairleigh attests that his debt load prevented him from paying Ms. Boner the $900 owed each month during November 2022 through September 2023, but that when he refinanced his mortgage in September 2023, he was able to pay the $9,900 owing all at once. [18] Mr. Fairleigh also attests that he needed eight days of childcare to cover a August 2023 two-week summer block of parenting time with the Child because he had booked his summer vacation as a solid month in the belief that Ms. Grieser was agreeable to his having a solid month of parenting time, and that when Ms. Grieser ultimately did not agree to a solid month, he then had the Child for two weeks in the summer during which he had to attend work. [19] Ms. Grieser says that Mr. Fairleigh's childcare costs for the school year are unreasonable. She says while Justice Baker found up to $90 a day "at the high end" to be reasonable, that was in the context of an expense claim that also included low-end days of only $30 per day. Ms. Grieser says Mr. Fairleigh's current expense claim reflects his paying Ms. Boner $308.57 per day to babysit the Child at her house. She also notes that Ms. Boner is 84, does not drive, and has no first aid

training. [20] With regard to the 2024 summer break expense claim, Ms. Grieser says she never agreed to a one-month block of parenting time and, in any event, had made her position clear in early March such that any misapprehension about her position ought to have been dispelled by that date. She says that the summer childcare expenses incurred by Mr. Fairleigh due to the manner in which his vacation was booked and taken are not reasonable. [21] Ms. Grieser also takes issue with Mr. Fairleigh's lack of proof of payment in respect to his post-trial childcare, and is skeptical of his claim that he paid Ms. Boner retroactively once he had the money. Ms. Grieser further attests that during the parties' relationship, Ms. Boner babysat the Child on several occasions and never sought any payment. Ms. Grieser speculates that it is possible that Ms. Boner accepts Mr. Fairleigh's childcare payments, but then subsequently returns the money paid back to him. Ms. Grieser notes that Ms. Boner has the financial ability to pay the Child's private school tuition. (Ms. Boner pays the entire tuition. Ms. Grieser is not required to contribute to that expense.) IV. Analysis [22] Neither party provided any case law dealing with the reasonableness of s. 7 expenses involving a non-arm's length service provider. My brief review reveals that payments to a relative for childcare services have been held

to be reasonable in some circumstances, but disallowed in others: see, M.A.K. v. I.J.K., 2019 ABQB 54 at paras. 158-59 (disallowed: no receipts and free alternative childcare available); O.M.S. v. E.J.S., 2018 SKQB 20 at paras. 6-8 and 62-63 (reasonable: grandparents willing to accommodate variable work hours, adhere to dietary restrictions, and transport the children to activities and appointments; payments also less than the cost of historical third-party service providers); Clayson-Martin v. Martin, 2014 ONSC 7530 at 223 (reasonable: payments to family members actually made and payments to family actually claimed for childcare deductions by payor parent); Fox v. Danecek, 2022 ABPC 239 at para. 28-32 (disallowed: purported childcare expenses having gone unpaid for several years; court not satisfied there was a genuine intention to compensate family member). [23] In the four decisions canvassed above, reasonableness was assessed solely by reference to the facts of each case. However, taken collectively, these cases suggest the following as a non-exhaustive list of factors that may be relevant to reasonableness: a) Whether the court is satisfied the time spent is legitimately a childcare service as opposed to merely family time; b) Whether there are reasons for preferring the relative as a service provider: e.g., experience with a child's special needs; ability and willingness

to escort the child to and from activities and appointments; ability and willingness to accommodate an atypical or changeable work schedule); c) A comparison of actual cost and of "value for money" as between the family member service and a third-party service; d) Whether there are associated tax consequences impacting the net amount payable by the contributing parent. [24] In addition, as already noted, in this case the Trial Decision itself significantly informs the assessment of "reasonable" for purposes of s. 6(g) of the Final Order. [25] Following a full trial, Justice Baker accepted that Ms. Boner was legitimately providing childcare services and should not, in the circumstances, be expected to do so for free. While Ms. Boner's childcare commitment involved a greater overall investment of her time under the alternating week schedule, the current schedule has Ms. Boner solely responsible for a young child for a period in excess of ten hours on an almost weekly basis. The parameters of a ten plus hours commitment easily exceeds what might be considered simply family time. I am satisfied that nothing in the evidence before me warrants moving away from Justice Baker's conclusion that Ms. Boner was providing childcare services that she should be compensated for. [26] On the other hand, the evidence indicates that Ms. Boner is providing babysitting services in the manner

generally expected of a close family member. The Child is dropped off at Ms. Boner's home, and she and the Child spend the day together, largely engaged in activities that Ms. Boner would likely have done in any event (e.g., going to church, doing household shopping, preparing food to eat). Ms. Boner does not drive. She does not have first-aid training. She is not offering a program of activities. She is not providing regulated services. Ms. Boner presumably provide the Child with the benefit being cared for with genuine love, but that aspect of their time together is a mutual benefit - for the Child, but also for Ms. Boner. Accordingly, I reject Mr. Fairleigh's argument, in the circumstances here, it would be appropriate for Ms. Boner's services to treated, for purposes of s. 6(g), as if Ms. Boner were an arms'-length, third-party childcare provider. [27] Further, in keeping with the fourth factor outlined above, on my reading of paras. 103 and 104 of the Trial Decision, Justice Baker specifically did take into consideration the fact that Mr. Fairleigh had not obtained an associated tax deduction in respect of the cost of Ms. Boner's services. In other words, in concluding that $90 a day was a reasonable cost for purposes of s. 7 contribution, Justice Baker considered whether that rate would countervail the net benefit that would gained by Ms. Grieser had a third-party

provider been employed and an associated tax deduction obtained by Mr. Fairleigh. [28] Mr. Fairleigh's position on this application amounts to a submission that $900 a month remains a reasonable amount for him to seek contribution in respect of Ms. Grieser under s. 6(g) of the Final Order, regardless of the change to the parenting schedule. I disagree. In my view, Justice Baker did not find $900 a month reasonable. Rather, she found $90 a day to be reasonable in the circumstances of the alternating week schedule and the fact that there was no associated tax deduction being claimed by Mr. Fairleigh. [29] At present, Ms. Bonar is providing childcare only one day a week, but notably is providing it for 10 plus hours on that day. Considering the nature of the childcare services she is providing, and considering the fact that Mr. Fairleigh has not claimed an associated tax deduction, I am of the view that $110 a day is the maximum reasonable childcare cost that Ms. Grieser is required to contribute to under s. 6(g) of the Final Order. [30] Ms. Grieser expressed concerns about what Ms. Boner might possibly be doing with the funds she is paid for her childcare services. However, the court has accepted that Ms. Boner is legitimately providing a childcare service for which she should be compensated and is being compensated. Ms. Grieser's interests in the matter are safeguarded by the

court's assessment of what constitutes a reasonable cost given the facts of case. In the circumstances, I see nothing in the law that would entitle Ms. Grieser or the Court to seek to constrain what uses Ms. Boner may choose to put the money toward, including by putting it toward the Child's tuition. [31] However, I agree that Ms. Grieser should not be obliged to contribute to the cost of the eight days of childcare that were made necessary by Mr. Fairleigh's having booked his 2024 summer vacation as a solid month notwithstanding s. 4(c) of the Final Order. The evidence does not satisfy me that Ms. Grieser ever did agree to solid month of parenting time. Nor is there evidence before me indicating that Mr. Fairleigh made all reasonable efforts to try to reschedule his vacation time following Mr. Grieser's clarification on the issue. V. Disposition [32] I find that the maximum reasonable cost of childcare that Ms. Grieser is obliged to contribute to under s. 6(g) of the Final Order with respect to weekday childcare services provided by Ms. Boner during the school year portion of the parenting schedule under the Final Order is $110 a day. [33] Ms. Grieser is not obliged to contribute under s. 6(g) of the Final Order with respect of the cost of the eight days of childcare obtained by Mr. Fairleigh in the summer 2024. "Tucker J."