Alberta Court of Appeal cancels civil contempt order in spousal and child support case

The Alberta Court of Appeal has set aside a civil contempt order, restored a parent’s child and spousal support obligations as if they had never been stayed, and considered the support arrears payable and enforceable immediately. 

In Kalmbach v Kalmbach, 2025 ABCA 204, an interim order provided the respondent’s spousal and child support obligations. Two months before the scheduled time, the Alberta Court of King’s Bench set a case management meeting to tackle multiple applications, including one seeking to find the appellant in contempt. 

A day before the case management meeting, at around 3:55 p.m., the appellant emailed the case management judge’s judicial assistant and the respondent’s counsel to inform them she needed an adjournment since she could not attend. 

The judge, who had not received the appellant’s email before the case management meeting, chose to proceed in her absence. The judge granted a civil contempt order dated Aug. 17, 2023, upon finding that the appellant’s conduct had hindered progress in the proceedings. 

The judge also imposed a series of sanctions, including a stay of the interim order on support. 

Contempt order set aside

The appellant challenged the case management judge’s decision on appeal. The Court of Appeal of Alberta allowed the appeal. First, the appeal court acknowledged the frustration of the judge, who had prepared for the case management meeting. 

The appeal court accepted that the self-represented appellant failed to comply fully with directions made during case management. Specifically, she missed deadlines, failed to file materials responding to the contempt application, asked to adjourn a previous case management meeting, and failed to attend the oral appeal hearing without notice or explanation. 

However, the appeal court determined that the circumstances of this case and the way they unfolded tainted the contempt order and the consequent sanctions imposed and amounted to procedural unfairness. 

The appeal court found that the judge proceeded with the application seeking the extraordinary remedy of contempt without considering the substance of the appellant’s email and based on a misapprehension of the requirements of a court of record. 

The appeal court noted that the judge believed she could not consider the email because the Court of King’s Bench was a court of record. The appeal court accepted that family law case management did not disregard the regular procedure for filing court applications. 

However, the appeal court said a case management judge could adjourn proceedings based on an email if appropriate and could address concerns about maintaining the court record in various ways, including reading relevant parts of the out-of-court communications into the record when adjourning in open court and entering a formal adjournment order. 

The appeal court ruled that the judge in this case failed to explain why the chosen sanctions were proportionate or why less severe sanctions would not be effective. 

The appeal court noted that the appellant deserved an adjournment since she had no idea that a stay of the support order would be a possible sanction and had no chance to address this issue. The appeal court also noted that the respondent did not request a stay. 

The appeal court found it difficult to imagine a situation where a parent’s contempt would justify removing a child’s source of support. The appeal court stressed that it was not ruling on the merits of the appellant’s claimed justification for the requested adjournment. 

The appeal court ordered the appellant to pay the respondent’s costs on a solicitor-client basis: 

• for the contempt application, including the costs for the Aug. 17, 2023 appearance 
• for attending and preparing for the oral appeal hearing 

The appeal court set off these costs against any amount that the respondent owed to the appellant under a court order, except child support.