Father alleges contempt through failure to comply with parenting order
The Alberta Court of Appeal has dismissed a father’s application for permission to appeal a desk duty justice’s refusal to proceed with a hearing of a family matter on the urgent applications list of the Alberta Court of King’s Bench.
In Tupechka v Tupechka, 2026 ABCA 103, the applicant wanted the court to deal with his case under the “Notice to the Profession and Public New Processes in Family Law: Family Focused Protocol Effective January 2, 2026,” which included an urgent applications process for matters involving a risk of violence or immediate harm to a party or a child.
Specifically, the applicant sought to bring an urgent application for a contempt finding. He alleged that the respondent failed to comply with an interim parenting order. On Jan. 9 and Feb. 3, the applicant submitted two requests for the court to hear his application in urgent chambers.
The respondent’s counsel opposed the second request and expressed an intention to apply for an order allowing the respondent to relocate and exercise primary parenting. The court denied the applicant’s requests on Jan. 12 and Feb. 5.
A desk duty justice of the Court of King’s Bench refused to order a hearing of the matter on the urgent applications list. Noting that the applicant had not followed her previous direction, she assessed that the court could not hear the anticipated issues within the time allotted for an urgent application based on affidavit evidence.
The applicant applied for permission to appeal the refusal. He argued that the desk duty justice did not address his position that the court could not reasonably delay the matter, did not give enough clarity about the delay criterion, and did not consider the children’s best interests.
The applicant added that parties should respect court orders and that the deprivation of parenting time necessarily created urgency.
The respondent sought costs under Column 3 as this matter involved a discretionary decision in a family matter and a late application to appeal the desk duty justice’s first denial or a collateral attack against that denial.
Permission denied
The Court of Appeal of Alberta found that all relevant factors favoured refusing permission to appeal. The appeal court did not consider this an extremely rare and exceptional case warranting such permission.
The appeal court ruled that the applicant failed to show a possibility of success or an apparent benefit in his proposed appeal, which would focus on whether the desk duty justice erred in assessing that a 20-minute hearing in urgent chambers on affidavit evidence could appropriately address a contempt application, plus a cross-application for relocation and primary parenting.
As it could not reverse time, the appeal court found that appeals against scheduling and caseflow orders would be pointless or detrimental and would likely unduly prejudice the parties through distraction, delay, more costs, and procedural uncertainty.
The appeal court rejected the applicant’s argument that it could substantively address the contempt application’s merits and his parenting concerns. The appeal court explained that it relied on trial courts to assess the evidence, determine the parties’ credibility, and make other factual findings.
The appeal court held that the desk duty justice’s fact-driven and discretionary denial of the applicant’s request – which considered factors such as the availability, allocation, and use of judicial resources of the King’s Bench – lacked precedential value and tackled no important legal question.
The appeal court ordered the applicant to pay costs under Column 1, given the novel issue raised.
