Goddard v Goddard, 2018 ABQB 965

Court of Queen’s Bench of Alberta Citation: Goddard v Goddard, 2018 ABQB 965 Date: 20181123 Docket: 4803 176656 Registry: Edmonton Between: James Ryan Goddard Plaintiff - and - Joelle Kelley Goddard Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] James Ryan Goddard seeks a variation of an Interim Without Prejudice Order for child and spousal support granted by Little J. on June 14, 2017. The support ordered was calculated on the basis that Mr.

Goddard’s income was $220,000 per annum. He says that while that figure may have been consistent with what he earned in the years preceding the Order, his actual income declined in the year following the order and he does not expect to earn that much in the future. Accordingly, he seeks a retroactive adjustment of his child and spousal support obligation, a recalculation of the arrears he owes, and a prospective adjustment of ongoing child and spousal support. [ 2 ] The June 2017 Order was also calculated on the basis that Joelle Kelley Goddard had primary parenting of the parties’ three children. Mr.

Goddard seeks an adjustment because since shortly after the order, the parties have shared parenting on a 50/50 basis. [ 3 ] [I note that Little J.’s order is dated “June 14, 2016”. It appears that is an error given that the action was not commenced until July 4, 2016, all the materials referred to in the Order are dated in June 2017 and the Order was filed on July 10, 2017. The correct date of the Order was June 14, 2017.] [ 4 ] In the June 2017 Order, on the basis of an annual income of $220,000 and of primary parenting being with Ms. Goddard, Mr.

Goddard was ordered to pay the guideline amount of child support of $3940 per month, and monthly spousal support of $2331, for a total monthly payment of $6271. [ 5 ] The June 2017 Order recited that Joelle Kelley Goddard’s annual income was $24,000.

[ 6 ] On September 14, 2017 [this order is also incorrectly dated, September 14, 2016] an Order further adjourning Mr. Goddard’s parenting application provided: Parenting shall continue to be shared on a 50-50 basis, following [Mr. Goddard’s] 6 day on, 6 day off work

schedule until further Order of this Court. [ 7 ] Accordingly, at least from September 2017, the parenting has been shared, at least formally, 50/50. I understand that Ms. Goddard no longer opposes shared parenting, though her evidence is that, in fact, Mr. Goddard is not available to parent the children as much as 50% of the time and accordingly the children are with her much more than 50% of the time. [ 8 ] In this application, in addition to an adjustment to his support obligation, Mr. Goddard seeks an order imputing an annual income of $41,600 to Ms.

Goddard on the basis that, because of the shared parenting arrangement, she is available now to earn greater income than she is earning. [ 9 ] When the June 2017 Order was granted both parties were represented by counsel. They participated in an early intervention case conference in February 2018 which resulted in two consent orders, one relating to the sale of property owned by the parties, and the other relating to aspects of parenting. The issue of the appropriate amount of child and spousal support Mr.

Goddard should be required to pay was not resolved. [ 10 ] I was appointed to case manage this matter in June 2018. Mr. Goddard’s application regarding an adjustment to his child and spousal support obligation and for an order imputing income to Ms. Goddard was set to be argued on September 26. On September 26, after hearing submissions, I directed the parties to file further evidence and argument in relation to the issue. They have done so. Mr. Goddard’s Income [ 11 ] Mr.

Goddard’s position is that $220,000 was not the appropriate income level to use for 2017 or 2018. [ 12 ] So far as 2017 is concerned, the evidence does not support that position. The evidence includes his T4 slip for 2017 (though not his CRA Assessment). The T4 slip indicates that his income from employment was $236,320. The evidence does not justify a reduction in the income used to calculate his support obligations. Indeed, it might support an increase if Ms. Goddard were to seek one. [ 13 ] As to 2018, the evidence indicates that up to June 23, 2018, Mr. Goddard’s gross income was $93,285.10.

If he is paid the same amount in the last six months of 2018, his gross income for 2018 will be $186,570.20. [ 14 ] Ms. Goddard’s position is that Mr. Goddard’s actual income should be imputed to be more than that. She submits that in past years his income has included very significant overtime earnings. She submits that he has chosen in 2018 to work less overtime in order to suppress his income and reduce his support obligation.

She also submits that he has elected not to be paid for a very significant number of overtime hours, but instead has “banked” those hours and elected to use them to cover regular work hours which he did not actually work. This has also resulted in the artificial reduction of his income. Mr. Goddard’s employer permits the banking of worked overtime hours and the application of those hours, at the employee’s option, to cover regular hours assigned but not worked. [ 15 ] Mr.

Goddard’s position is that his overtime work has declined because of a change in his duties with his employer and in order to permit him to be available for his parenting time. Ms. Goddard answers the later point by observing that his parenting obligations have not had that effect. She swears that she is very frequently called on to parent during Mr. Goddard’s parenting time because of his work obligations. [ 16 ] As to the banking of overtime, the pay records Mr. Goddard has disclosed indicate that he has elected not to be paid for as much as $17,500 worth of overtime hours to the end of June of 2018.

It appears he has used the hours that would have entitled him to that payment to cover regular hours that he took off work. The records indicate that in the same period he had 189 hours (which I assume is about 23 days) of vacation entitlement but used only 14 hours. [ 17 ] If he had taken payment for the banked overtime hours which he used to cover regular hours he took off work, his income to the end of June 2018 would have been at least $110,500 ($93,000 + 17,500). Assuming the same earnings in the last half of 2018 confirms the income level used in the June 2017 Order, $220,000. [ 18 ] In my view, Mr.

Goddard has not demonstrated that there ought to be an adjustment to the amount of his income used to calculate his support obligations.

Whether or not he has reduced the amount of overtime he works, or it has reduced as a result of changes to his employment, it appears that in the first half of 2018 his earnings, including the value of withdrawn banked overtime, were on the track used in the June 2017 Order. [ 19 ] In my view, given that, historically, overtime work contributed significantly to the income he had available to support his children, and given that he appears to have used banked overtime instead of holiday entitlement, there is sufficient basis, at least for an interim without prejudice order, to accept Ms.

Goddard’s submission that he appears to have artificially suppressed his income. Ms. Goddard’s Income [ 20 ] In my view, the evidence does not justify imputing greater income to Ms. Goddard than was recited in the June 2017 Order. I am not satisfied that the evidence shows she is not earning as much as can reasonably be expected in the circumstances. The Support Obligations [ 21 ] As noted, the child and spousal support obligation ordered in June 2017 was calculated on the basis that Ms. Goddard would have primary care of the children.

However, at least by September 2, 2017, a 50/50 shared parenting arrangement was in place. I understand that there is no longer an issue about whether or not there should be shared parenting – the parties have agreed to 50/50

shared parenting. This should be reflected in the amount of the support obligations. [ 22 ] The offset Guideline s.3 child support amount calculated on incomes of $220,000 and $2400 is $3402.00. The spousal support amount calculated on the basis that each party will have 50% of the net disposable income is $1712.00. I order support in those amounts retroactively to September 1, 2017. [ 23 ] The total monthly support amount is $5114. One half of this support, $2557, will be payable no later than the first day of the month.

The other half will be payable no later than the 15 th day of the month. [ 24 ] The June 2017 Order provided in paragraphs 4 and 5 for the payment of support pursuant to Guidelines s. 7. Those provisions of the Order shall continue without variation. The support payable by Mr. Goddard pursuant to them is in addition to the child and spousal support mentioned in the previous two paragraphs. I order that the full amount of the Guideline s. 7 support shall be payable on or before the first day of the month beginning December 1, 2018.

Arrears and Conditional Stay of Enforcement [ 25 ] I direct that MEP recalculate the arrears Mr. Goddard owes as a result of the adjustments I have ordered. [ 26 ] I order that until further order, there will be a stay of enforcement of arrears conditional upon Mr. Goddard paying the ongoing monthly support obligation on or before the due date and in addition paying $250 in respect of the arrears with each payment (that is a total of $500 each month). The first payment in respect of arrears shall not be due until December 15, 2018, the day after the existing stay of enforcement expires.

Interim Without Prejudice Order [ 27 ] The Order resulting from this application will continue to be an interim without prejudice order and will therefore be subject to retroactive adjustment or variation. This is because I am not confident in the ultimate reliability of some of the materials provided on this application.

Further, the final resolution of some of the issues arising on this application may require credibility findings which I am unable to make on the basis of the filed materials and, if unresolved, may require a trial Formal Order [ 28 ] As the parties are unrepresented I have arranged for the formal order to be prepared by the Court. Accordingly, its form will not require the approval of the parties. Heard on the 26 th day of September, 2018. Dated at the City of Edmonton, Alberta this 23 rd day of November, 2018. B.R. Burrows J.C.Q.B.A.

Appearances: Kathy Drouin-Carey for the Plaintiff Joelle Kelley Goddard Appeared without Counsel