Kowalchuk v Kowalchuk, 2017 ABQB 228

Court of Queen’s Bench of Alberta Citation: Kowalchuk v Kowalchuk, 2017 ABQB 228 Date: 20170330 Docket: 4810 024452 Registry: Red Deer Between: Tina Denise Kowalchuk Plaintiff/Applicant - and - Dale Michael Kowalchuk Defendant/Respondent _______________________________________________________ Endorsement Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] In morning chambers, Mr. Kowalchuk who is assisted on this application by duty counsel, applies for a specified parenting

schedule and termination of spousal support. [ 2 ] In this morning chambers venue, the court is only able to deal with matters on which there is no contest on the facts – taking into account that the court may be in a position to make a factual determination based only on affidavit evidence. [ 3 ] The court severs the issues of child support and spousal support from the amended Statement of Claim for divorce. The parties are not in substantial agreement on those issues. [ 4 ] However, both parties want a divorce and the procedural requirements for a divorce have been met: Mr.

Kowalchuk was noted in default in April, 2016. Therefore, this court grants a divorce judgment on Ms. Kowalchuk’s claim.

[ 5 ] On the parenting issue, the court notes that of the parties seven children, only the two youngest are of an age when their wishes are not a weighty factor.

The court will not make a parenting order with respect to the parties’ 18 year old child, who is apparently still a “child of the marriage” for child support purposes, nor for the next youngest child; those two children can decide how much time they wish to spend with each one of their parents. [ 6 ] With respect to the two youngest children, commencing Thursday April 6, 2017, the father will have alternate weekend access from Thursday afternoon at 2 p.m. to Sunday afternoon at 7:30 p.m., extending to Monday afternoon at 7:30 p.m. if Monday is a statutory holiday.

The father will also have access on the afternoon of Father’s Day and the mother will have access for the full day on Mother’s Day. The mother will have the children during the Christmas holiday in December; the father will have five consecutive days with the children at Ukrainian Christmas. The father will not take the children out of the country without the mother’s prior written consent. The father will have two consecutive weeks of access with the children during the summer, on 30 days’ notice in writing to the mother.

Each party is required to give 30 days’ notice to the other of any intention to move from their current residence. Because the father moved away from where the family had been living, he will be responsible for all access transportation. [ 7 ] In coming to the above conclusions relating to parenting, I have taken the following into account. In relation to alternate weekend access, I note that in para. 17(

h) of her affidavit, the mother agrees to the father having access on statutory holidays “if it’s his regularly scheduled weekend”; however, elsewhere in her response she indicates that if there is a long weekend, she wants the access to commence on Friday, and elsewhere, she indicates that she wants the access to terminate on Saturday. The court concludes that, although the mother is somewhat concerned about church attendance for the younger children, she does not have any basic objection to alternate weekend access.

It would negate her agreement to extend the weekend access on statutory holiday weekends if the access period were shortened at the other end. The mother also asks that the father’s access visits with the children be “delayed on Thursdays by the same amount of time the [father] returned the children after 7:30 p.m. [on Sunday of the previous access weekend]; this is a term which is virtually guaranteed to ensure bickering over access periods and that bickering is not in the children’s best interests.

The father now lives a few hours away from where the children live; it is therefore understandable that, from time to time, he will not be able to keep to the precise

schedule which has been outlined. The mother also asks for a provision which has sometimes been described as a right of first refusal, i.e. “should the [father] not be able to care for the children during his regularly scheduled access visits I shall have the choice of keeping them in my care rather than the [father] having someone else care for them”.

Given the ages of these children and the fact that the father has regular parenting time with them, there is no reason to suspect that the father will not make reasonable choices for child care while his children are in his care; the right of first refusal is likely to produce friction and is of no discernible benefit to the children. The mother agrees that the father can celebrate Ukrainian Christmas with their children but asks that this be limited to 4 rather than 5 days; I do not discern any benefit to the children to so restrict that holiday access period.

The father’s extended family lives in Saskatchewan; there is no reason why he ought not to be able to take the children there, or on a camping trip into BC, during his access periods. The mother asks not only for 30 days’ notice in relation to summer access but also that the times of summer access be agreed between the parties; the purpose of giving notice in advance is to allow the other parent to make appropriate arrangements. It would be counter-productive if both notice and agreement were required.

With respect, it is not sensible for the parties to engage in further litigation over ½ of Father’s Day access. [ 8 ] There are other parenting issues which cannot be resolved in this morning chambers application because the court is unable to make a decision, based on contested facts, as to what is in the best interests of these children. If one of the parents wishes to pursue those issues, that parent will have to set an application down for a hearing at which each of the parents will be entitled to testify.

The issues which remain to be decided are: - should the father’s summer access be increased to 4 weeks from 2 weeks; - should the father have access to the children on “regularly celebrated occasions”.

While this expression may mean Easter, spring break, Thanksgiving, and the like, it will be up to the father to identify what access he proposes for what specific occasions and why that access is in the children’s best interests; - should the length of notice which each party must give the other of a proposed move be increased to 60 days’ from 30 days’; - the mother wishes the father to provide her with a copy of his diabetes testing results as often as he has testing done.

She has not indicated why this is necessary in the children’s best interest; - each of the mother and the father wish to have some say in what is done during the other’s parenting time – sleeping accommodation, driving situations, IPad use, etc. These matters would have to be dealt with in a trial setting. [ 9 ] On the child support issue, the existing court order requires the father to pay $2,176.00 per month in child support. The mother states that, for four children – thereby including the child who is over 18 - on an income of $85,000.00 the father should be paying $1,914.00 per month.

The father shows a pay stub receipt for 2016 setting out total yearly income of $82,037.47. The federal tables states that, on an income of $82,037.47, the father should be paying $1,851.00 in child support. The difference of $63.00 per month may not be worth additional litigation.

However, the father states that he was being operated on for a shoulder injury in January 2017; his application has no update of either medical or financial information as a result of that surgery, if it did in fact occur. [ 10 ] In the result, I will amend the November 6, 2015 order by lowering the father’s child support payment from $2,176.00 per month to $1,914.00 per month. [ 11 ] If the father wishes to pursue any potential overpayment claim, or if he states that neither $82,000.00 nor $85,000.00 is his current gross income, he would have to bring a new application.

If the facts in relation to his application are contested, he would have to request a viva voce hearing on his income for support purposes. [ 12 ] If the mother wishes to pursue her claim for s. 7 expenses, she would have to bring a new application; similarly, if that application depended on contested facts, she would have to request a viva voce hearing.

The November 6, 2015 order does not need to be amended in order to reflect this: that order merely repeats what s. 7(2) of the Federal Child Support Guidelines states, i.e. s. 7 expenses will be shared by the parents in proportion to their incomes unless the court otherwise decides. Nor is it useful to amend an existing order

to repeat the definition in the Guidelines as to what s. 7 expenses might be. Either the parents agree that a specific expense is a s. 7 expense, or there must be a determination by a court as to whether the proposed expense is a permissible s. 7 expense in the circumstances and, as to whether the statutory provision that such expenses will be shared proportionately to their incomes should be changed to some other proportion.

With respect to these parties, the situation has been, and is today, that the father must pay 100% of any s. 7 expenses which are either agreed or determined by a court because he is the only one earning an income. The November 2015 order in these proceedings does not state what is the permissible s. 7 expenses for these children are. There appears to be a dispute between these parties as to expenses for music lessons.

Unless the parties agree on a s. 7 expense, the parent who claims such an expense must prove both that the expense is necessary in the child’s best interests and that the amount of the expense is reasonable in light of the parents’ circumstances and the pattern of spending on s. 7 expenses while the family was living together.

Unless the parties agree on a departure from the provisions of s. 7(2) of the Guidelines, the party who wishes to pay less than their proportionate share of s. 7 expenses must satisfy the court as to the justification for such a departure. [ 13 ] On the spousal support issue, the mother states that she is unable to obtain employment for two reasons: first, the parties agreed that their children would be home schooled and the youngest of their children has not yet completed the home schooling program and, second, although she does have a degree in linguistics, that degree was earned over 25 years ago and would not be of use to her in obtaining employment in that field today.

She indicates that she would likely only be employed at an entry level service job. [ 14 ] It is not possible for the court to resolve this dispute on this application. If the father wishes to change his spousal support obligation, he must bring a separate application. If the facts relating to spousal support are agreed, i.e. that the parents agreed that the children would be home schooled and that home schooling prevents employment, then the application should be brought as a family law special chambers application.

If the spousal support facts are in dispute, the father will have to find trial time to deal with the spousal support issue. [ 15 ] In light of the divided success on this application, each party will bear their own costs of this application. Heard on the 22 nd day of February, 2017. Dated at the City of Red Deer, Alberta this 29 th day of March, 2017. J.B. Veit J.C.Q.B.A. Appearances: Duty Counsel - Julia Ibanescu for the Applicant, Mr. Kowalchuk Robert M. Oxman, Family Law Office - Central Alberta for the Respondent, Ms. Kowalchuk