Hayden v. Hayden, 2012 ABQB 738

Court of Queen ’ s Bench of Alberta Citation: Hayden v. Hayden, 2012 ABQB 738 Date: 20121130 Docket: 4803 149310 Registry: Edmonton Between: Tracy Alan Hayden Plaintiff - and - Rosarie Marie Hayden Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] I last dealt with this matter on November 24, 2011 in written Reasons now reported at 2011 ABQB 731 .

The issues at that time were described as follows: The Court is asked to deal with issues of custody and access, as well as ongoing and retroactive child support issues. The mother seeks and Order for:

1. Joint custody and primary residential care of the child of the marriage born in February 2011; 2. Specified parenting time to the father; 3. Ongoing child support and

Section 7 expenses based on the parent ’ s current Guideline income; 4. Retroactive child support in the amount of $24, 936.00 as of August 31, 2011. The father replies that since November 2009 when he lost his job the parties have had by agreement, share residency of the child on a week on/week off basis, and that this should continue. He submits that even if these parties were not initially in a

Section 9 arrangement, they certainly were after February 2011. If that is the case, it is submitted that the mother owes the father child support from December 1, 2009 until January 1, 2011 based on the parties ’ 2010 tax returns, although notwithstanding this, the father says that he has been paying $150.00 per month to the mother. [ 2 ] In October 2012 counsel returned to the Court seeking clarification of a number of matters arising from my written Reasons as they were unable to agree on the final form of Order. Counsel acknowledges that on an ongoing basis the father ’ s income was set at $90,244.00, and the mother ’ s income is $58,000.00. The parties are in a

section 9 arrangement, with the net “ set off ” with respect to child support to be made by the father to the mother in the sum of $293.00 per month. The proportionate share of

Section 7's is 60/40. [ 3 ] The father had not paid any child support to the mother for the one child of the relationship after October 2009. In paragraphs 23, 26 and 46 of my written Reasons I stated the following: The mother has been the child ’ s primary caregiver since the child ’ s birth. When the parties separated, they agreed this would continue and this was specified in their Separation Agreement of October 2007. ... The father ’ s position was that at least since November, 2009 he has had shared residency of the child.

Once his contract with the Town of Stony Plain ’ s golf course was terminated in October, 2009, the parties agreed that he would provide all before and after school care, along with this frequent and regular access. I conclude that the parties certainly began a one week on/ one week off arrangement by February, 2011. ... However since February/March, 2011, the parties have clearly by agreement, been on a week on/week off basis. I conclude that this should continue in the child ’ s best interests. The parties were not initially in a

Section 9 arrangement, however they began to be in such an arrangement in November 2009 after the father lost his job. [ 4 ] Accordingly I determined that the mother had the primary care of the child from the date of separation until February 2011, at which point the father had week on/week off parenting. The child ’ s shared residency continues on a week on/week off basis, and it was also ordered that the mother will be entitled to claim child related benefits with respect to the child of the marriage for tax purposes. I also determined that there will be no review of child support retroactive to October 2009.

At that time the father lost his job and his income; and his parenting responsibilities changed. The Parties seem clear with these aspects of my decision as well.

The Present Application for Clarification [ 5 ] As for the present dispute regarding my Order, I conclude that the father was entitled to stop paying child support as of October 2009 because he had lost his contract with the golf course, notwithstanding that income earned by him in the 2009 golf season was reflected in his Corporation ’ s 2010 financial statement. I further conclude that the father had no obligation to pay child support until July 2010 when he began to earn $46,000.00, and that that child support obligation increased again in September 2011 when he obtained employment of $90,000.00.

Finally as a result of having shared parenting as of February 2011, I conclude that his child support obligation at those levels of income were to be set off by the child support owed by the mother based on her level of income commencing February 2011. [ 6 ] Accordingly the final Order that I issue in this regard will include the following: It is hereby determined that the Plaintiff has had primary care of the child of the marriage from September 1, 2007, being the date of separation of the parties to, February 2011.

It is hereby determined that the Plaintiff and the Defendant have had shared residency of the child of the marriage on a week on/week off basis since February 2011. It is hereby ordered that the parties shall continue the share residency of the child of marriage on a week on/week off basis. It is hereby ordered that the Defendant shall be entitled to claim the child related benefits with respect to the child of the marriage for tax purposes. It is hereby ordered that there shall be no review of child support retroactive to October 2009. It is hereby determined that:

a) The Plaintiff ’ s income from November 2009 to June 2010 was $0.00

b) The Plaintiff ’ s income from July 2010 to August 2010 was $45,900.00 and based on the aforesaid, the Plaintiff shall pay child support to the Defendant for the period of December 2009 to August 2011 in the amount of $791.00 calculated as follows: c) $0.00 December 2009 to June 2010 d) $2,709.00 owing by the Plaintiff to the Defendant for the period July 2010 to January 2011 (the amount of $387.00 per month for seven months); e) $1918.00 owing by the Defendant to the Plaintiff for the period February 2011 to August 2011 based on the Defendant earning $58,000.00 per year while the Plaintiff earned $45,900.00 per year (the amount of $113.00 per month for seven months).

[ 7 ] It is also ordered that as of September 1, 2011 the Plaintiff ’ s income is $90,241.00 and the Plaintiff shall pay child support to the Defendant in the amount of $1,172.00 per month and the Defendant ’ s income is $58,000.00 per year and the Defendant shall pay child support to the Plaintiff in the amount of $879.00 per month and as a result the Plaintiff shall pay the net amount of $293.00 per month to the Defendant for the period September to December 2011.

As of January 1, 2012, the new table amount applied and the Plaintiff shall pay child support to the Defendant in the amount of $781.00 per month and the Defendant shall pay child support to the Plaintiff in the amount of $481.00 per month and as a result the Plaintiff shall pay the net amount of $300.00 per month to the Defendant beginning January 1, 2012 and continuing on the first dat of each month thereafter. [ 8 ] Finally the mother submits that the parties should be entitled to make further submissions with respect to the matter of costs.

In that regard the mother has raised the issue of various offers she made before the matter was argued, that I was not aware of. As such I give leave to the Parties to provide the Court with further written submissions within 30 days as to the issue of costs. Heard on the 12 th day of October, 2012. Dated at the City of Edmonton, Alberta this 29 th day of November, 2012. Donald Lee J.C.Q.B.A. Appearances: Michelle Reeves Attia Reeves Tensfeldt Snow for the Plaintiff Shirley A. McNeilly, Q.C. Emery Jamieson LLP For the Defendant