Fulk v Kulchyski, 2016 ABQB 519

Court of Queen’s Bench of Alberta Citation: Fulk v Kulchyski, 2016 ABQB 519 Date: 20160919 Docket: FL03 48981 Registry: Edmonton Between: Dennise Marie Fulk Applicant - and - Allan Wayne Kulchyski Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers application, Ms. Fulk asks for interlocutory conjugal support: for the last 8 years she has not been employed outside the home. The parties have an 8 year old son. [ 2 ] Mr. Kulchyski responds that entitlement to spousal support has not been established. In addition, he argues that because of: his relatively low income; his payment of both Ms. Fulk’s notional share of the mortgage on the conjugal home and her share of the credit card debt that was used for conjugal purposes; and, Ms.

Fulk’s adequate financial situation including the fact that she is not paying child support, he should not be required to pay spousal support. [ 3 ] Ms. Fulk’s application is denied.

[ 4 ] Ms. Fulk is entitled to spousal support: the relationship between the parties created or allowed economical and financial dependence on Mr. Kulchyski. [ 5 ] However, given Mr. Kulchyski’s relatively low income at the present time, his maintaining an important financial asset for Ms. Fulk’s benefit, his assumption of conjugal debt and the fact that Ms. Fulk is not paying child support, and Ms. Fulk’s ability to provide limited support for herself, on an interlocutory basis, and on the basis of the financial information available on this application, Mr.

Kulchyski is not able to provide financial support to Ms. Fulk. 1. Background [ 6 ] Ms. Fulk is in her mid-forties. She has lived with the respondent since approximately 1994. She has not been employed outside the home since approximately 2008. The parties have one child together; that child is now 8 years old. [ 7 ] Mr. Kulchyski says that he has never stood in the way of Ms. Fulk obtaining employment after the birth of their child, but rather encouraged employment. [ 8 ] Mr. Kulchyski says that neither he nor the applicant have post-secondary education degrees or specialized training.

He says that, in her last employment, Ms. Fulk was the lead hand in a lumberyard. [ 9 ] Mr. Kulchyski currently earns a gross yearly salary of approximately $45,000.00. In 2014, he lost the employment which paid him a little over $60,000.00 yearly. In 2015, by cashing in all his RRSPs, he managed to maintain income at the 2014 level. He is now totally reliant on his income from employment. He has a vehicle. He his living in the conjugal home which the parties own together. Mr. Kulchyski estimates that the equity in the home is approximately $160,000.00.

The parties have not yet had serious discussions about how Ms. Fulk can obtain her share of the equity in the home. [ 10 ] Ms. Fulk is renting a room in the home of a friend. She does not have a vehicle. She is working in a town approximately 200 km from Edmonton, basically at a minimum wage. 2. Entitlement [ 11 ] Ms. Fulk is entitled to spousal support. [ 12 ] Limited information has been provided on this application on the issue of entitlement to spousal support. In relation to compensatory support, for example, it is not clear whether Ms.

Fulk gave up any financial or economic advantage as a result of her relationship with Mr. Kulchyski or whether the kind of employment she would have had, had it not been for her relationship with Mr. Kulchyski, is the kind of employment where having a child would cause an economic or financial set-back or levelling. Nor is it clear whether Ms. Fulk’s choice of current residence has decreased her ability to resume her position in the work force and become financially self-supporting either immediately or at all.

All these issues will, of course, be explored at the trial. [ 13 ] As to support based on need, although Ms. Fulk’s current budget indicates that she is in a position to support herself, the standard of living to which that corresponds, for example in respect of accommodation and transportation, is far below the lifestyle she enjoyed during the relationship with Mr. Kulchyski. [ 14 ] On this application, there is no evidence of a contractual basis for conjugal support. [ 15 ] What has been clearly established is that, for at least the last 8 years of their relationship, Ms.

Fulk has been economically and financially dependent on Mr. Kulchyski. Mr. Kulchyski says that he has always encouraged her to resume employment. Even if that were so, Mr. Kulchyski accepted that Ms. Fulk was not employed outside the home and was dependent on him financially; in other words, even if he didn’t encourage dependence, he allowed dependence to develop. The resulting dependence can, of course, be overcome, but it typically takes time to do so and, during that time, the spouse is entitled to support. 3. Mr.

Kulchyski does not have sufficient means, at this time, to pay conjugal support [ 16 ] The difficulty on this application is that, at this time, Mr. Kulchyski does not have sufficient income to pay conjugal support. [ 17 ] In coming to this conclusion, I rely on the following: - this is an interlocutory application. I would therefore not be in the parties’ interest, and certainly not in that of Ms. Fulk, to impinge on Mr. Kulchyski’s ability to maintain what is the parties’ only valuable asset, their home, by impinging on his ability to keep up mortgage payments from his employment income. Ms.

Fulk has no current ability to contribute to the mortgage, and has not, indeed, contributed to the mortgage in at least the last 8 years. Forced sales of real property typically garner less profit than do deliberate ones. It is in both parties’ interest to make a reasoned decision about their main asset; - Mr. Kulchyski’s income has substantially decreased from its 2014 level. He has been playing catch-up.

However, there must certainly be a possibility that he will regain the level of income he had previously achieved at which time he will be in a position to pay conjugal support if that is ordered; - at the moment, the parties are awaiting a trial on the issue of parenting. The child is currently residing primarily with the father, but the mother is seeking a different parenting regime. In the meantime, however, the mother is not paying child support; and, - as discussed earlier, there is no information on this application about what the mother’s level of income would be without the relationship with Mr.

Kulchyski and without having had a child. Therefore, even on this application it is not possible to decide, for example, what level of “top-up” income might be appropriate. 4. Costs

[ 18 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the receipt of this decision. Heard on the 31 st day of August, 2016. Dated at the City of Edmonton, Alberta this 16 th day of September, 2016. J.B. Veit J.C.Q.B.A. Appearances: Deborah Baradziej Trilogy Family Law for Ms. Fulk Timothy D. Wallis Peterson Krochak for Mr. Kulchyski