Kendry v Kendry, 2017 ABQB 78

Court of Queen’s Bench of Alberta Citation: Kendry v Kendry, 2017 ABQB 78 Date: 20170206 Docket: 4803 176878 Registry: Edmonton Between: Stephanie Kendry Applicant - and - Kody William Kendry Respondent _______________________________________________________ Endorsement Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] For the following three reasons, Ms. Kendry’s special chambers’ application for retroactive support of approximately $24,000.00 going back to January 2013 is adjourned to be determined at a trial the date of which will be set by agreement between the parties: - on this application, Ms. Kendry has not provided a satisfactory explanation in her written evidence of her failure to raise the issue of child support on any of the many court applications since 2013 on which she was represented by a lawyer.

This issue of whether a claim retroactive to the date of the notice she gave of her claim can be entertained will have to be determined by a trial judge; - the parties give conflicting explanations of the reason why at least simple set-off child support was not paid in the period immediately following separation. On the material provided by each of the parties, it is not possible for this court to determine why no such support was paid. That factual dispute will have to be resolved by a trial judge; - Ms.

Kendry’s argument that there was a shared parenting system from the date of separation to the present is not borne out by a plain reading of the various court orders issued during the time period. As we know, a parent who has only overnight parenting time with

a child - as for example, alternate week-end access and several weeks of access during summer vacations - must still provide much of the same infrastructure for the children which the parent having primary care must provide. However, it is only when the access parent’s parenting time reaches 40% that consideration is given to sharing the major infrastructure costs. The policy reason for setting that floor presumably has to do with the fact that an access parent need provide only bare bones, or camping-style, accommodation for the children for relatively short periods of time.

The financial support analysis presumably changes at the 40% level because it is recognized that, at that level of parenting time, children require more or less similar accommodation wherever they are residing. In the situation here, it will be necessary for a trial judge to determine if there was truly a shared parenting regime throughout or whether one parent was essentially providing the stable base for the children while the court was deciding whether the shared parenting regime could resume. [ 2 ] Ms. Kendry will have carriage of the trial of the issue of entitlement to retroactive child support.

She will have the responsibility of proposing a litigation plan to Mr. Kendry that will set out, at a minimum, which pre-trial steps can be undertaken along with process deadlines, how the judicial history in this matter can most expeditiously and economically be put before the trial court, how many witnesses will be called by each party, and how much trial time will be required. [ 3 ] Costs for the special chambers application will be determined by the trial judge. Heard on the 9 th day of January, 2017. Dated at the City of Edmonton, Alberta this 6 th day of February, 2017. J.B. Veit J.C.Q.B.A.

Appearances: Jeanette M. Roberts, West End Law for Ms. Kendry Kody Kendry, on his own behalf