Question regarding termination of daycare contract

[totomama]

I have a question regarding termination of contract - we are terminating our contract with our daycare provider, and she mentioned that since she has not taken her vacation yet so we owe her a weeks worth of vacation pay. However this has not been stated in the contract. Am I obliged to pay her for that week?

[treeholm]

Not unless it is in the contract. You probably have to give her a certain notice period, and if you leave during that notice period, you would still have to pay. For example, I have a two-week notice period, and the deposit my clients pay at the contract signing will go towards that time. If you decide to give a shorter notice period, you still pay for the full two weeks because I would need time to find a new family. I don't take paid vacation, so that part wouldn't apply to me.

[ladyjbug]

I agree with Treeholm. I also have a deposit given on contract signing for my two week notice.

Depends on what your contract says, and the timing of your notice period as per your contract. If your notice period falls during her vacation that you were notified of, and she takes paid vacation and/or requires paid notice stated in your contract, then yes, you should pay for that week. If she is asking for vacation that hasn't been scheduled yet in the future and probably occurring after your departure, then if it isn't mentioned in the contract, I would not pay.

[sunnydays]

I would also say that you do not have to pay unless your contract states that you will have to pay vacation pay if you terminate before the provider takes her vacation. As long as you have given the proper notice or paid for the period of notice instead, then I believe you should not have to pay anything more.

[totomama]

Thank you all. This is what I thought as well. The notice period was 4 weeks, and I put in my notice 6 weeks before the end, as a courtesy. The vacation does not fall in this time period. She mentioned that like most other places, vacation is accrued per month worked. However, I think this would need to be stated explicitly in the contract.

[treeholm]

She is a self-employed person, and not entitled to accrued vacation benefits. If she wishes to be treated as an employee, that is different but the CRA has some pretty strict guidelines on how to tell if you are an employee or a self-employed person. You can't just pick and choose which qualities you like on each list LOL

[sunnydays]

I do know providers who do it this way, with vacation days being accrued monthly, but they have that in their contracts so that there are no surprises.

[treeholm]

Yes, sunnydays, I agree that you can put whatever you want into your contract. In this case, however, it sounds like the provider was going on the assumption that the client would understand that vacation pay is accrued just like anywhere else. That sounds like the provider is trying to use the employment standards, and as a self-employed person, she is not entitled to use those standards. Can you imagine hiring a contractor to do some work for you, and getting the bill with HST and vacation pay added? As long as the contract is set up that way, it would be fine, but it doesn't sound like that was the case.

[apples and bananas]

I think it's ridiculous that a provider would ask for a weeks vacay when it's not in the contract as accrued vacation.

She has 6 weeks notice, if she replaces the client before she takes vacay in august then that client will be responsible to pay for her week off. Wouldn't she be paid double if she got it from this client as well?

Seems sneaky to me. But I understand we don't have the providers side of the story.

If I were you (the client) I would just lay low until the last payment. Pay for your time until the end and thank her for her service. You don't want to run into trouble in the last few weeks of care.

[kimmills]

Even I have teh same opinion, you do not have to abide by anything that is not mentioned in the contract. If it is not mentioned then the provider is not entitled to any vacation pay.

[playfelt]

I think one of the things to consider is how did the provider treat you and your vacation days for the past year. For instance I give parents 10 days they pay half rates for to use for things like sick days, vacation etc. and I have 5 vacation days that are paid that I can take whenever I want either a day here and there for sickness or a week off. In that case if a parent has used any days prior to leaving then I would expect to be given the same curtesy and either have my days paid or be reimbursed for the days they used ie the other half of each day off repaid in lieu of my vacation days.

However if a family is leaving there is often a mutual joy and I would probably not stress the days and know I have money already for the last two weeks and just leave it at that.

We plan things based on anticipated income and those that are stretched to the max as in every penny earned is earmarked for expenses are understandably left in a bind when the money is no longer going to be there. Unfortunately it is not the responsibility of the parents to make up for our shortfall. It is important in this business that we plan for shifts in income and have a way to cover our own expenses when we are down in numbers. ie if your family can not survive on you having less than your total allotment of kids then it would be a good idea to work on finding another source of income to supplement so that you are not left unable to pay the bills. The stress of lack of money is going to be a lot more than the stress of picking up a shift as a cashier on the weekend.

[LisaS]

Hi There!

We have a similar situation happeneing right now with our provider and wondered if I could get your opinions..

In April 2014 we hired our daycare provider to start in Sept 2014 - we paid her a 2wk deposit to hold the spot for us, that we understood would go towards the last two weeks of care.

In February 2015, I advised our daycare provider that our daughters last day with her would be Jun 25, 2015 (I gave her more than 4mths notice!). I assumed that the last two weeks of care (June 12-June 25) would already be paid for, with our deposit we had given her last year.

Daycare provider informs us that since she is entitled to 10 days (2wks) vacation every year, and has only taken 2 days so far in 2015, that we will need to pay her 8 days of vacation - meaning that instead of our last 10 days being paid for, we now have to pay 8 days.

Her contract states:

-Provider will require 2 week paid holiday per calendar year (regardless, if the child/chilredn are here or not for the full year)
-Parents will provide two weeks pay as a deposit with this contract. It will not be refunded if the child/children do not attend this daycare for any reason. However, it will go towards the last two weeks of daycare.
-Parents must give two month's notice in ending this agreement in writing, and pay for care until that two month period is done.


I interpret this to mean that during the year, my daycare provider is entitled to take 2 weeks vacation, even if we are only there for part of the year.. I was very surprised when I was told that we would have to pay for her un-used vacation time, this was NOT made clear to us last year when we hired her! We gave her plenty of notice as to when we were leaving, giving her enough time to fill our spot.. so if she goes on vacation at any time the rest of this calendar year, the person who replaces us will also pay her, therefore she will be getting paid twice for the same period!

I really want to leave on good terms with our provider, but I don't want to pay for something that is not in our contract.. would you interpret the contract this way??

[mickyc]

I think by her contract you need to just pay her for her vacation days. What happens if her vacation begins when you are leaving? She won't be able to find someone to start the day you are leaving only to have her on holidays. That's my take on her reasoning.

[5 Little Monkeys]

That is odd...what if you start late in the year and she's already taken her vacation...does she request that you still pay her the 2 weeks? I agree with you Lisa that it does not seem fair that she could potentially be paid multiple times for her holidays for the same spot.

However, I read it that you are responsible for paying for her 2 weeks though regardless of time there. I personally don't agree with it but I'm not sure if you can get out of it now :(

[Praline]

I'm almost in a similar situation. We are thinking of changing daycare providers for our son and I am trying to figure out how much notice we would need to provide. It's our first child and I think we went into this and signed the contract a little quickly without thinking about whether we may need to change care providers. The contract is pretty vague (to me) and does not consist of any clause about ending early, etc. The contract says:

This Agreement is for one year commencing: _January 20, 2015_

Payment is by enrollment and will not vary for 52 weeks of the year. This means that payment is expected whether the child is in attendance or not. Caregiver is paid for her 3 weeks holidays and 3 sick/other days per calendar year.

This is all there is in the contract regarding payment and its length. From this I'm not sure what our options are...any advice would be greatly appreciated.

[playfelt]

You don't say how old your child is but assuming if you started in Sept child will be 2 by then (ie just before proclamation) and there may be another factor coming into play here. Because of Bill 10 there is a very good chance your provider was counting on your child being in care as one of her over age 2 spaces which are very hard to fill. If she already has 2 children under age 2 she can not fill your child's space with another child under age 2. In other words the provider is potentially facing a loss of income that will last from June till some time in 2016 when one of the others turns 2. She may already be facing a loss of income depending on the ages of her own children.

Is it your responsibility to pay - by the wording of the contract yes but I agree that it is not fair and was never adjusted to account for someone leaving care and another family starting care and paying for the vacation. I would be inclined to try to explain to her that you don't feel it is fair for her to be paid twice for the same vacation so you will be paying for one week of the vacation and the family that starts care after you can pay for the other week. She isn't going to like it but it might be the way to make it end on a positive note in your favour as by the wording of the contract she could take it to small claims court to get the money owed for both weeks so better to meet her half way placating her so to speak if you can.

[Suzie_Homemaker]

I have a question regarding termination of contract - we are terminating our contract with our daycare provider, and she mentioned that since she has not taken her vacation yet so we owe her a weeks worth of vacation pay. However this has not been stated in the contract. Am I obliged to pay her for that week?

Not unless it's in the contract that it accrues over the year. I just changed my contract so mine accrues. I have 10 days a year and twice now, people have left the week before I take my leave so I've ended up with unpaid vacation time.

Sure, it sucks from the providers POV when it happen but if not in the contract, you not owe it.

[Suzie_Homemaker]

Three parent on this thread questioning their contract. Moral of this is to READ your contracts and make sure you understand them. Whether or not you agree with the terms, is irrelevant once it is signed and these contract is enforceable in law courts.

It doesn't matter if your opinion is that it is unfair. Provider has added clause because she views the alternative as unfair. Once you have signed the contract, as with any contract, you are indicating agreement to the content.

Your chance to object to it, is before signing not after, when you had the advantage of carer honoring their terms.

[Suzie_Homemaker]

You don't say how old your child is but assuming if you started in Sept child will be 2 by then (ie just before proclamation) and there may be another factor coming into play here. Because of Bill 10 there is a very good chance your provider was counting on your child being in care as one of her over age 2 spaces which are very hard to fill. If she already has 2 children under age 2 she can not fill your child's space with another child under age 2. In other words the provider is potentially facing a loss of income that will last from June till some time in 2016 when one of the others turns 2. She may already be facing a loss of income depending on the ages of her own children.

Is it your responsibility to pay - by the wording of the contract yes but I agree that it is not fair and was never adjusted to account for someone leaving care and another family starting care and paying for the vacation. I would be inclined to try to explain to her that you don't feel it is fair for her to be paid twice for the same vacation so you will be paying for one week of the vacation and the family that starts care after you can pay for the other week. She isn't going to like it but it might be the way to make it end on a positive note in your favour as by the wording of the contract she could take it to small claims court to get the money owed for both weeks so better to meet her half way placating her so to speak if you can.

Not everyone in Ontario!!!! This presumption growing old with auto replies about Bill 10 and proclamation. Could we check people's location before pulling all threads into this as the majority of province not affected by Ontario's changes?

[Suzie_Homemaker]

I'm almost in a similar situation. We are thinking of changing daycare providers for our son and I am trying to figure out how much notice we would need to provide. It's our first child and I think we went into this and signed the contract a little quickly without thinking about whether we may need to change care providers. The contract is pretty vague (to me) and does not consist of any clause about ending early, etc. The contract says:

This Agreement is for one year commencing: _January 20, 2015_

Payment is by enrollment and will not vary for 52 weeks of the year. This means that payment is expected whether the child is in attendance or not. Caregiver is paid for her 3 weeks holidays and 3 sick/other days per calendar year.

This is all there is in the contract regarding payment and its length. From this I'm not sure what our options are...any advice would be greatly appreciated.

Some provider have these annual contract to provide them with chance to review and make changes annual. Some have contract which is on-going and details how to give notice and how notice of change will be given.

For most provider, we have starting contract which evolves over time as we faced with situation we not considered in beginning. It might be your provider copied this contract from internet and not considered what policy is if someone leave mid-year. It also might be that they have limited knowledge of writing contract/own dayhome and so think that parent able to commit to full year.

Like you, they might not have noticed this missing from their contract if situation not arose yet - this could be if newer provider.

The only way to know what options are is to speak to your provider. We can only guess the intention behind it as can you. Just ask her how you submit your notice if your situation changes and how much notice is needed. Had you both lost your job 2 weeks into this contract, it not reasonable that you would have been obligated to continue paying for care for another 50 weeks at full cost. Ask her and go from there.

Any contract can be challenged in Small Claims Court. If she says that you must pay for full year, and you refuse, she can take your to court and you will get chance to explain to Judge why you think it unfair. But in most cases, a signed contract over rides everything else because it's your responsibility to make sure you understand and agree. However, if a Judge feels language wasn't clear or contract was unreasonable, they might rule in your favour.

[playfelt]

Ontario is almost the only province that doesn't have the 2 under 2 or even stricter limits. So this applies to pretty much every province that it is hard when it is an older child that is leaving and the provider will be limited by the age mix left in care. Soon people in Ontario will be in the same boat as other provinces.

[LisaS]

Three parent on this thread questioning their contract. Moral of this is to READ your contracts and make sure you understand them. Whether or not you agree with the terms, is irrelevant once it is signed and these contract is enforceable in law courts.

It doesn't matter if your opinion is that it is unfair. Provider has added clause because she views the alternative as unfair. Once you have signed the contract, as with any contract, you are indicating agreement to the content.

Your chance to object to it, is before signing not after, when you had the advantage of carer honoring their terms.

I fully read my contract before signing... The issue here, is that the contract is not clear, so it was very much a surprise to be told that I need to pay her for her vacation that has not been taken this year. Like someone else in the thread mentioned, the contract should refer to accrued vacation, and not just say that she is 'entitled to 2wks paid vacation per year'.

And no, the issue would not be because of my daughters age... When we first started with this daycare in September, I was up front and honest about the fact that we would only be needing her services from Sept until the summer (and I gave MORE than enough notice as to when we were leaving), as my daughter is starting school this September... I was very honest about everything, and feel taken advantage of, to be honest.

I have tried speaking to her about it, to let her know that what she is asking is not really in her contract, to see if we can come to a compromise, but it doesn't look like that is happening... guess I am out $328! :(

[Suzie_Homemaker]

I fully read my contract before signing... The issue here, is that the contract is not clear, so it was very much a surprise to be told that I need to pay her for her vacation that has not been taken this year. Like someone else in the thread mentioned, the contract should refer to accrued vacation, and not just say that she is 'entitled to 2wks paid vacation per year'.

And no, the issue would not be because of my daughters age... When we first started with this daycare in September, I was up front and honest about the fact that we would only be needing her services from Sept until the summer (and I gave MORE than enough notice as to when we were leaving), as my daughter is starting school this September... I was very honest about everything, and feel taken advantage of, to be honest.

I have tried speaking to her about it, to let her know that what she is asking is not really in her contract, to see if we can come to a compromise, but it doesn't look like that is happening... guess I am out $328! :(

I think that my point. In your situation, I would have made sure contact edited to reflect that care was only from Sept to Summer and also that a max of 2 weeks vacation over the whole contract would be owed vs risk two weeks per calendar year.

Any specific arrangement should always be reflected in contract and for own protection we all have to make sure it is, regardless of day care or any other service of contracting.

What if you just not pay her? What if you let her take you to court - maybe you able to argue your case that it her contract that at issue for not being clear?

Do you have any e-mail or written correspondence from beginning showing you told her only 12 month care needed and then able to show her contract not edited with full information?

From my understand, Small Claim court is less formal and so if Judge think your contact unfair or unclear they have some flexibility to rule against her.

If you willing to brazen it out and not pay, and see if she take you to court, it might be option.

I would take client to court for non-payment but only if I really, really sure I would win and not end up paying costs and losing money. I think if she files, you get chance to settle before court if you worried about credit rating being affected by Judgement.