"Pet-free" daycare now getting a pet

[MommaL]

I'm posting for a friend as I am stumped what to suggest to her, and she doesn't have easy access to the internet.

My friend's son has been going to a home-based daycare for about 6 months. Part of the reason why she chose the daycare is that it was advertised as being "pet-free". Her son has allergies, so it was important that he somewhere without pets. Well, the provider just informed her that they are getting a dog over Christmas. My friend has told her that her son will not be able to continue after Christmas if that's the case because of his allergies.

The provider told her that she will still have to pay January fees, as she charges by the month and requires at least 1 month notice of termination (so that there's 1 month payment after notice is given). My friend doesn't know what to do! She's already financially strapped (thus not even having the internet at home), and can't afford to pay two daycare providers for January (assuming she finds someone by then). But she also feels that it's unfair because the provider advertised her home as being pet-free and is now getting a pet without letting the families know well in advance.

Any thoughts?

[torontokids]

I would argue that the provider didn't give her a months notice about the change to the daycare so therefore she was unable to give one months notice. It depends what her contract says though. It sounds as if the provider is the one who broke the agreement by getting a pet when they specifically said "pet free."

[Van]

can your friend give the one months notice and stay on for the month of Jan giving her time to find a new daycare and also time to the provider to find a new client

[5 Little Monkeys]

Agree with TOkids. It sucks that the dcp didn't take possible allergies (or even dislikes/fear) of the dcf's before committing to get a pet but I think it should be her that takes the loss since she advertises as "pet free".

[Suzie_Homemaker]

The provider told her that she will still have to pay January fees, as she charges by the month and requires at least 1 month notice of termination (so that there's 1 month payment after notice is given). My friend doesn't know what to do! She's already financially strapped (thus not even having the internet at home), and can't afford to pay two daycare providers for January (assuming she finds someone by then). But she also feels that it's unfair because the provider advertised her home as being pet-free and is now getting a pet without letting the families know well in advance.

Any thoughts?

Does she have any advertising or document which state "pet free"?

Carer is in breach of contract. Parent went to carer for valid reason wanting pet free home. If carer change agreement, carer in breach of contract. This make whole contract null and void.

I think it unlikely that her contract say this specifically but maybe your friend has something that does state this pet free home?

If so, find new carer and tell current carer they withdrawing due to breach in contract and son's allergies and because contract no longer valid, they will not be paying any more than already paid. BUT need something to prove that the case, if carer take parent to court for non-payment. It would be useful if it documented somewhere.

If it not, put in writting they withdrawing from care due to new pet clash with child's medical health and let her sue. If it their word against carer, as long as carer not going to lie about being pet free so far, they should win. But document always better as proof than word.

[CrazyEight]

I agree that your friend shouldn't have to pay the month's notice as the caregiver should have given a month's notice that a change like a pet was going to happen, in order to give her clients a chance to give notice if they didn't like the change - the same procedure that the caregiver should have followed if she was changing other major things - fees, hours, etc.

Does it say in the contract that the daycare is "pet-free" or just the ad? If the actual contract says "pet-free" then the caregiver is breaking her contract. If just her ad says that, then your friend will have a harder time getting out of paying the notice period. Also, does the provider know that the child has allergies? Was this discussed during the interview? As in, was the condition that the daycare be and remain pet-free discussed and agreed upon prior to the child starting? These could help sway your friend's case if she does choose to fight the notice.

[Suzie_Homemaker]

If you go court over this, it will be in Small Claim court where each person represent themself. It less formal and Judge able to apply discretion in deciding and not have to be hard letter of law. If you can prove she advertises as pet free place even if not actually in contract, that be good enough. Can also prove it a medical need by simple letter from doctor.

This combined will show you had no option but move your child and if provider made this change without giving enough time for notice, that on her not you. No Judge will expect you pay for choice she made and put your son at risk.

Find any document with her claim to be pet free. Find any correspondence between you and carer that discuss your child allergies. Find anything that support your statement that child cannot be around pet and that this was always pet free day care. Once you have it all, assess if you think that enough to prove your statement of why chose this home and why you need pull child. And then keep it in case she files claim. I bet she won't but if she does, you will have enough showing you had no option.

[Lee-Bee]

I think the catch is whether or not it was labelled in the contract as a pet free daycare.

When I opened we were pet free. We still are. But it was not in my contract that we were or would remain pet free. Obviously if I knew a child was signing up had severe allergies I would try to make note of this and give lots of notice if we did decide to get a pet. But ultimately it wouldn't have been in the contract and I don't think there would really be any legal terms to act on.

Any chance that sitting down and discussing it with the caregiver would be of help to settle this. Ultimately the caregivers business is in their home and they are doing what they feel is best for their family. I do think the caregiver should be considering the impacts on the child with allergies and be forgiving the weeks notice. But there is a good chance the contract wasn't written in a way that requires it so should the caregiver really just not care then they may not have a way out.

[Suzie_Homemaker]

Because of allergy and prior advertisement of pet free, there is an implied condition of care. If she changes that, even if contract not specifically state will remain pet free, it is carer changing the contract and parent does not have to agree. Carer has to give notice of change, parent not have to give notice to leave if terms being changed. They can leave from date the change come into effect if they not agreeing to the change.

If she takes to court, then it helpful to be able to prove that implied condition of care. An e-mail exchange, an old advertisement, anything which shows she was pet free and that was reason for choosing, is all that needed to support claim.

[MommaL]

Thanks everyone for your replies! My friend is a bit more encouraged to hear that she might not have to pay for another month, but is still very stressed about the whole thing. There is nothing written in the contract about being pet-free or that the provider has to give any notice about getting a pet. However, my friend does still have the original ad, where is says the daycare is pet-free. She also has an email exchange from before their interview where my friend told the provider that her son was allergic and confirming with that the home was pet-free, in which the provider replied that yes it was. But that's all she really has.

[Suzie_Homemaker]

My son say send this and put in writing, email is fine.


Dear Provider

As you are fully aware, we joined your dayhome following your advertisement of having a pet free environment. This was something you confirmed to us as accurate prior to joining your daycare and we discussed my child's allergies and the importance of a pet free home.

We totally respect that as a family home you have every right to decide to get a pet but that is not the environment we were promised for our child. As such, since it is you, not us, changing the agreement in place, it is you not us breaching the terms of care we had. We do not expect our son's medical concerns to affect your decision however, under the circumstances, we are not legally obligated to pay a month's notice to withdraw our child from your care. You have opted to bring in a family pet over the Christmas period and in doing so, have not provided us with sufficient time to give the notice period we normally would have given.

We are happy to continue in your care under the original agreement of you having a pet free home but in choosing to bring in an animal which is detrimental to the health of our child and in choosing to inform us just a short time before the change comes into effect, it is you who is breaching the contract not us. As such, from the time the animal arrives in your home, the contract is breached and therefore becomes null and void.

We cannot be expected to abide by the notice period within a contract that you have made invalid. Due to this, there will be no payment for notice period and we expect a refund for care already paid for, which we will not be able to receive once your new pet arrives.

I trust this will be the conclusion of this matter.

[babydom]

Suzie.....does the caregiver have any leg to stand on, because there is nothing in the contract about the pet free? So is she really breaching terms of the contract? Only her add stated pet free but life changes and now she's no longer pet free. Unless her contract says to give a mths notice to,any changes in this contract then I would agree. But if it doesn't and nothing is mentioned about pets in the contract then the parents can really send that letter??

I'm not arguing I'm truely curious. I had the same stituation. Sort of. Yrs back. I took on a family to start in a mths time. In that time I also took on another family and now had five daycare kids and my own kids. As this was before bill 10 so our kids didn't count. Anyways I hired an assistant to help me and I emailed all the parents to make them aware of this. Everyone was ok but this one family that hadn't started yet. She said when we signed the contract we signed on knowing you would only have four kids and no assistants. We don't want a big crowded daycare so we want our deposit back. I said the deposit is non refundable. They said we'll fight this as u changed the contract rules after we signed on and we no longer agree with ur way of running ur daycare. Long story short I have the deposit back and said good ridings. I always thought I was right. I can change and run my daycare anyway I want and it's up to them to leave and find something else if they don't like it. But now after reading this thread maybe I was wrong? She came on as pet free and it worked well but now life changes and the provider got a pet. So it's up to her to stay or leave for another pet free daycare. No?

[Lee-Bee]

Suzie.....does the caregiver have any leg to stand on, because there is nothing in the contract about the pet free? So is she really breaching terms of the contract? Only her add stated pet free but life changes and now she's no longer pet free. Unless her contract says to give a mths notice to,any changes in this contract then I would agree. But if it doesn't and nothing is mentioned about pets in the contract then the parents can really send that letter??

I'm not arguing I'm truely curious. I had the same stituation. Sort of. Yrs back. I took on a family to start in a mths time. In that time I also took on another family and now had five daycare kids and my own kids. As this was before bill 10 so our kids didn't count. Anyways I hired an assistant to help me and I emailed all the parents to make them aware of this. Everyone was ok but this one family that hadn't started yet. She said when we signed the contract we signed on knowing you would only have four kids and no assistants. We don't want a big crowded daycare so we want our deposit back. I said the deposit is non refundable. They said we'll fight this as u changed the contract rules after we signed on and we no longer agree with ur way of running ur daycare. Long story short I have the deposit back and said good ridings. I always thought I was right. I can change and run my daycare anyway I want and it's up to them to leave and find something else if they don't like it. But now after reading this thread maybe I was wrong? She came on as pet free and it worked well but now life changes and the provider got a pet. So it's up to her to stay or leave for another pet free daycare. No?



I think there is "right" and there is right.

In your case you do in fact have the right to change your daycare, add another child, add an assistant. BUT to keep your clients happy (which impacts your work, your reputation, your income) major changes should be given notice and we need to recognize that some families will not be comfortable and will leave. Sometime giving back a deposit, or forgoing notice period, should be done just for the sake of the business. It is us making the decisions so we as the caregiver should be the one feeling the impact. But, you are in your right to make those changes.

Just because you can go to the courts and win doesn't necessarily mean we should or that we did the right thing.

As for the OP's case. Yes that caregiver is in the right to get a dog and yes she can enforce her contract...BUT she is making a big change to the terms of care without giving enough notice and it isn't right to insist the family pay for the full notice period when it means their child's health is at risk due to the dog. The consequence of getting a dog last minute (or withholding the fact they planned it) is that they SHOULD forgo the payment for the notice period.

What is in one's rights isn't always the right and definitely isn't always the wisest move.

[babydom]

Ok. I agree with that :)

[MommaL]

Interesting! My friend just called. Her daycare provider has waived the fee for January. She also apologized for the extra stress, saying that her own children have been begging for a dog for years and they finally decided to get one as a Christmas gift for the whole family. It's almost like the provider is on this forum. If she is, thank you! :)

[torontokids]

I think most providers are reasonable and human! Sometimes it is just hard to see the situation form the others perspective.

Hopefully she can find alternative care in time!

[CrazyEight]

Glad it worked out amicably. Maybe the provider actually forgot that the child needed a pet-free environment?
Regardless, this is great news. Good luck to your friend with finding a new daycare. Which city is she in? There are probably providers here that are near her.

[Van]

I am glad it worked out well and I hope she finds a pet free daycare for Jan soon- There are a few providers having a dry time with no calls so they will be glad to help

[Suzie_Homemaker]

Suzie.....does the caregiver have any leg to stand on, because there is nothing in the contract about the pet free? So is she really breaching terms of the contract? Only her add stated pet free but life changes and now she's no longer pet free. Unless her contract says to give a mths notice to,any changes in this contract then I would agree. But if it doesn't and nothing is mentioned about pets in the contract then the parents can really send that letter??

I'm not arguing I'm truely curious. I had the same stituation. Sort of. Yrs back. I took on a family to start in a mths time. In that time I also took on another family and now had five daycare kids and my own kids. As this was before bill 10 so our kids didn't count. Anyways I hired an assistant to help me and I emailed all the parents to make them aware of this. Everyone was ok but this one family that hadn't started yet. She said when we signed the contract we signed on knowing you would only have four kids and no assistants. We don't want a big crowded daycare so we want our deposit back. I said the deposit is non refundable. They said we'll fight this as u changed the contract rules after we signed on and we no longer agree with ur way of running ur daycare. Long story short I have the deposit back and said good ridings. I always thought I was right. I can change and run my daycare anyway I want and it's up to them to leave and find something else if they don't like it. But now after reading this thread maybe I was wrong? She came on as pet free and it worked well but now life changes and the provider got a pet. So it's up to her to stay or leave for another pet free daycare. No?

Sorry for delaying but waited for son to come last night so he could explain it better to me.

In Small Claim Court which this would be, it much less formal. It not so black and white to be letter of law and no room for common sense. The Judge act more like a mediator and has level of discretion for common sense.

If person has record of pet-free advertisement and then communication showing that was key to their decision, the Judge will take into account that was big part of the reason for going to that daycare.

The provider is allowed to change anything about her service include getting pet in pet-free home but small claim Judge will accept that mean end of service for this client. Esp because it not simple preference but medical requirement. And allergies were communicate to provider before contract signed.

The Judge will accept that parent have no option not to return once pet in house. That 100% decision because clearly documented need before start care.

The provider has made change to service which mean that service no longer suitable for this family. Just like if she changed hours from 10am until 2pm she would be making service unsuitable for some client.

Because she change service so it not suitable, she is one breaking the term of agreement. It not matter that her contract not state pet-free. This parent documented before coming that this key requirement, had provider confirm it and had valid reason for need pet-free home.

If this was big tender document between companies, it would be different because contractual law mean the agreement is only what written on that signed piece paper and any verbal difference would no be considered. But in Small Claim Court, decision is based on common sense of Judge and not strictly law alone. This why Small Claim court exist. It not aimed at big lawyer battle. It aimed at common person with no legal background training and it based around what is reasonable in the circumstance. If one side being unreasonable, that can take into accounts.

My son explain that if parent held to set notice period, it only fair that provider must give same notice of significant changes. This permit parent to deny option to continue in care.

Where animal is coming into home in shorter time than notice period for parent, it not reasonable that parent have to pay for time due to provider lack communication in timely manner.

The minute that animal arrive, provider has changed the agreement in place. That mean parent not have accept new agreement and can walk away with "clean hand". My son explained that a term used when someone is entirely blame free from situation and has no liability.

If parent not had advertising and conversation confirm pet-free before joining or if parent had not advised provider it an allergy based requirement, it would be harder to persuade Judge that this was key in agreement even though not in contract.

(This all notes I have from son explain. I should maybe answered when he was here. I can call him and ask about your situation specifically at is lunchtime)

[Suzie_Homemaker]

I'm not arguing I'm truely curious. I had the same stituation. Sort of. Yrs back. I took on a family to start in a mths time. In that time I also took on another family and now had five daycare kids and my own kids. As this was before bill 10 so our kids didn't count. Anyways I hired an assistant to help me and I emailed all the parents to make them aware of this. Everyone was ok but this one family that hadn't started yet. She said when we signed the contract we signed on knowing you would only have four kids and no assistants. We don't want a big crowded daycare so we want our deposit back. I said the deposit is non refundable. They said we'll fight this as u changed the contract rules after we signed on and we no longer agree with ur way of running ur daycare. Long story short I have the deposit back and said good ridings. I always thought I was right. I can change and run my daycare anyway I want and it's up to them to leave and find something else if they don't like it. But now after reading this thread maybe I was wrong? She came on as pet free and it worked well but now life changes and the provider got a pet. So it's up to her to stay or leave for another pet free daycare. No?

I just call him.

He say client was right.

They sign on for one service and were getting something different. It would be viewed as misrepresentation of situation and make your contract void.

He say best example is - If someone buy used car privately and the ad say "new brake, new MVI" that even if person selling state sale is "as is" it would not be legal transaction unless that new brake and new MVI was real. Seller cannot make false claim to make sale and then write "as is" and be protect by laws about as is sales. They can say "good runner, never let me down" because that opinion but they not allowed make false statement.

For your situation, when family come to interview, they told that you would only have 4 child and you would be only carer. Even though you made statement with real fact, you later changed that through own choice and own control by take more children and adding assistant. Although you not lie in interview, you changed service that was discussed to be something different. It service discussed was not the same that was going be delivered. This would be misrepresentation (although not done to deceive). You made decision to deliver something different than what family signed up for. They were entitled to refund and they would have won court case. Like with car sale, service provider not allowed make inaccurate statement about service and deliver something else and if they did court would not uphold the contact because it signed for something different than client getting.

[babydom]

Hmmm ok. Thank u Suzie for all the details. This is very interesting. Is ur son a lawyer? Nice to have him to help us out. Tell him thank u for me!

One other question if u don't mind....lol :)

In my contract now as I just revised it, I put if caregiver is to make any changes like pay raise, hrs changed, etc. caregiver is to give one mths notice to clients to tell them about changes. So if I did do a change like get more kids and an Assistant I have to give a mths notice. But if I didn't have that written in my contract would I still be required to give mths notice? Like it's just common sense that, that is the law, kind of thing?

[Suzie_Homemaker]

Yes, contract lawyer for big organization.


I will e-mail your question to him.

[Suzie_Homemaker]

I though his reply posted earlier but not see it now.


Okay Mom - Basic crash course in contract law but I would have to see the whole contract to answer a specific question.

Normally, a written contract overwrites any verbal agreement. If it's not written on the signed agreement, it doesn't count but there are some exceptions to this. Ideally every contract would also cover every potential situation but in reality, they are basic when dealing with small businesses. They cover the common issues and are simple and for the most part that is all that is needed. It's the more unusual situations which result in a difference of opinion that end up in Small Claims Court with a Judge having to decide what is fair, who was at fault, and having to fill in the gaps that the contract did not cover. And a Small Claims Court Judge does not just consider the law but also what is reasonable and fair to both sides. They have some discretion when making their Judgements.

An element of what is a reasonable expectation comes into play where a contract misses a situation which has occurred. Of course it's reasonable that a small business might want to increase it's customer base, or that a family gets a dog, that a dayhome with more children has an assistant. But if the clients were specifically sold a small ratio home, or a pet free home, or a carer who worked alone, then that parent is no longer getting the service which was described to them.

Small Claims although still based in the law, does allow an element of fair play and common sense so a biased contract wouldn't be enforced if the situation resulting from the case was unreasonable or unfair to either side.

There are three situations that arise with regards to your questions.

Firstly, fairness of the contract and unbiased terms that place one party in a situation of having advantage or a position of strength. It would be unfair to require a months notice for a child to leave if only giving 2 weeks notice of a change. Especially if that change resulted in the service no longer being what was described. That would be a biased/unfair contractual term and in Small Claims wouldn't hold up.

Any service provider can increase their costs or change their service. Any client can accept that change or walk away but if there is a process for them to leave it has to allow adequate time for them to do that before changes come into effect. For your friends to be seen as unbiased, any significant change to the service, terms, prices, or anything else should be notified to parents to give them sufficient time to consider the impact of the changes and submit their notice if they wish to.

The second situation is one few people realize. When any service provider makes a change, they are ending the original agreement and proposing another which they hope will be accepted. From the minute that change becomes effective, the old contract terms have ended. The contract that was in force has expired for everyone involved. A provider cannot end a contract but then expect the court to hold the parent accountable to it's expired terms. There is no contract to hold the parent to with regard to notice period or anything else. That said, if the parents remain in care after the change, there is an implied acceptance of the new terms.

And third situation.

Your friends need to understand that when they describe their service at interview, their descriptions of the service are part of what decides if a new parent is coming to the dayhome.

The parents are consumers and so depending on the situation, they might have additional claim under Consumer Rights. Consumer rights change in different provinces & territories but basically, when in comes to services, the consumer is entitled to receive a service as it was described to them which is another aspect that protects those parents who signed up with a pet-free dayhome and the parents who signed up with a small dayhome.

I would advise that
(a) Any change that affected the service was advised to parents in a timely manner so that the contract is not considered unfair or biased.
(b) The timing of notification should be equal to or greater than the notice period parents are held to for the contract to be viewed as unbiased.
(c) Providers have to understand that if they make a change, it is them who is ending the original agreement/contract and that agreement/contract is over from the second the change comes into effect. Any parent can walk away at that time because there is no contract.
(d) Even if a provider gives a months notice of a change and the parent knows instantly that they will not be staying, the parent does not have to share that information with the provider. The provider ended the contract from the date of the change and neither party can be held to the old terms.
(e) Be cautious when making claims about your service which might change in future. Once a set service is described even if not part of the written contract, it is part of the reasons people chose you over your competitor and you have an obligation to deliver what you described for the duration of the contract.

[babydom]

Thank u,! :) :)

[mamaof4]

The documentation your friend has should be enough. I would write a firm letter and reference them, a doctors note, and that this is a safety/health issue. In the U.S. it would not be an issue