Kowalchuk v Kowalchuk, 2017 ABQB 64

Court of Queen’s Bench of Alberta Citation: Kowalchuk v Kowalchuk, 2017 ABQB 64 Date: 20170130 Docket: 4803 177088 Registry: Edmonton Between: Tanya Dee Kowalchuk Plaintiff - and - Kelsey Ross Kowalchuk Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] In this regular chambers application, Ms.

Kowalchuk asks for exclusive possession of the matrimonial home; child support for the two children of the marriage; spousal support; and an order for payment of a share of the mortgage and upkeep of the matrimonial home. [ 2 ] Mr. Kowalchuk cross-applies for shared parenting of the children and an imputation of income to Ms. Kowalchuk of $85,000.00 per year. [ 3 ] The court orders shared parenting with a nesting provision: the children will continue to live in the matrimonial home and the parents will move out of that home week and week around. Ms.

Kowalchuk will be provided with accommodation suitable for herself in a separate residence by Mr. Kowalchuk’s family [ 4 ] There will be a simple offset of child support obligations based on a deemed gross annual income for Ms. Kowalchuk of $68,000.00.

[ 5 ] There will be no interlocutory spousal support award. [ 6 ] Because neither party will owe the other occupation rent, the parties will equally share costs of maintaining the matrimonial home. 1. Background [ 7 ] The parties are the married parents of two children, an 11 year old and an 8 year old. When the parties separated in March 2016, Mr. Kowalchuk went to live in his father’s home and Ms. Kowalchuk remained in the matrimonial home with the children. [ 8 ] Ms. Kowalchuk is a dental hygienist who works three days a week, earning approximately $63,000.00 a year.

She also receives the Child Tax Benefit. [ 9 ] Mr. Kowalchuk is a construction worker who currently earns approximately $131,000.00 a year. [ 10 ] From the date of separation to October 2016, Mr. Kowalchuk provided approximately $2,600.00 per month to pay the mortgage, utilities and other costs connected to the home. In October 2016, he reduced his monthly payment to $1,880.00 which he alleges is 50% of the household bills. In that month, Mr. Kowalchuk also removed Ms.

Kowalchuk from his medical benefits plan. [ 11 ] The parties agree that there is a large equity in the matrimonial home which may be worth approximately $700,000.00. The home has been on the market since the summer of 2016. In October, Ms. Kowalchuk arranged to have the property re-listed with another agent. The parties are continuing to actively market the property. 2. Shared parenting [ 12 ] Although this is only an interlocutory, regular chambers application, Ms.

Kowalchuk has not indicated any reason why it would not be in the children’s best interests to share parenting with the children’s father. [ 13 ] One usual impediment to shared parenting is financial: it is expensive to set up what amounts to double accommodation for children, i.e. two residences each of which can accommodate children instead of the one which used to accommodate them prior to separation.

We understand, as well, that if a parent has any overnight parenting role with children, that parent must provide almost every material support for the children that would be required if the parent were sharing parenting as well as providing child support to the other parent.

That is, obviously, very expensive. [ 14 ] Here, although the parents are more comfortable financially than many others after separation, in light of the large amount of matrimonial value tied up in the matrimonial residence, even here it would be expensive to duplicate facilities for their children with a view to facilitating shared parenting. However, a nesting arrangement appears to be perfectly feasible here, at least for the relatively short time until the matrimonial home is sold. Mr. Kowalchuk already has accommodation for himself in his own parent’s residence. Luckily, Mr. Kowalchuk can also provide Ms.

Kowalchuk, at no cost, with an equivalent type of accommodation, i.e. appropriate for a single adult, to the accommodation which he currently has in a separate property owned by his parent. The children can remain in the home in which they have lived probably at least to the end of this academic year. Ms. Kowalchuk does not like the idea of Mr. Kowalchuk being able to go through her things while he is living in the matrimonial home; the availability to her of separate accommodation to which Mr. Kowalchuk will have no access will allow Ms.

Kowalchuk to keep her private things private. [ 15 ] Overall, a week and week around nesting arrangement will be in the children’s best interests. However, in order to allow the parties to prepare for that nesting arrangement, the arrangement will commence on Sunday, February 12, 2017 at 6:00 p.m. or on another date and time as the parties may agree. 3. Child support [ 16 ] On this interlocutory application, a simple set-off of child support is ordered. For that purpose, the mother’s annual income is deemed to be $68,000.00. [ 17 ] The issue of how much income Ms. Kowalchuk can earn is in dispute: Ms.

Kowalchuk maintains that the physical rigours of her employment limit her capacity to three days a week; this is disputed by Mr. Kowalchuk. Because that issue is disputed, it cannot be decided on this application. Ms. Kowalchuk has not, however, disagreed with Mr. Kowalchuk’s contention that she did, on occasion but fairly regularly for a time, pick up extra shifts. There is no evidence of the annual financial effect of these extra shifts. For the time being, therefore, I deem Ms. Kowalchuk’s annual salary to be $68,000.00 for the purposes of determining the amount of the simple set- off.

This is one of the many issues that will be re-visited on the final determination of the dispute between the parties. 4. Spousal support [ 18 ] On this interlocutory application, given that eventual accommodation needs and eventual assets available are not known and that the issues of entitlement and needs have therefore not been fully addressed, it is premature to make a spousal support award. Mr. Kowalchuk is, however, on notice that his wife’s claim for spousal support may be granted retroactively to the date on which she filed the claim. 5.

Cost of the matrimonial home [ 19 ] As expected, the parties claim an equal property interest in the matrimonial home. Neither will be in full-time possession of that home; therefore, neither will be liable to pay any kind of occupation rent to the other. In those circumstances, the parties will have an equal obligation to pay the costs associated with the home; the child support paid by Mr. Kowalchuk to Ms. Kowalchuk will presumably, at least in part, be used by her to help defray those costs.

6. Costs [ 20 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 12 th day of January, 2017. Dated at the City of Edmonton, Alberta this 27 th day of January, 2017. J.B. Veit J.C.Q.B.A. Appearances: Catherine Christensen, Valour Law for Ms. Kowalchuk Pierre R. Boileau, Miller Boileau Family Law Group for Mr. Kowalchuk