Child support should not be suspended as a remedy for contempt, parent alleges
The Alberta Court of Appeal has granted a partial stay and has reinstated spousal support pending appeal in relation to a contempt order issued against a mother during divorce and support proceedings.
In this case, the applicant mother and the respondent father separated in 2017. They had one child, a teenager who primarily lived with the applicant. The parties have been engaged in litigation since their separation, mostly involving child and spousal support disputes.
The respondent obtained a civil contempt order against the applicant in August 2023 after she failed to provide certain required information. As part of the contempt ruling, a case management judge stayed payments of child support, spousal support, and mortgage payments until the applicant purged her contempt.
The applicant asked the court to stay the contempt order and to reinstate the interim spousal and child support order issued in February 2022. She argued that suspending child support was inappropriate. She asserted that child support was the child’s right and should not be used as a punishment for contempt.
The applicant filed a notice of appeal in September 2023. The case management judge reinstated child support in October 2023. The applicant continued to seek reinstatement of spousal support pending appeal.
In Kalmbach v Kalmbach, 2024 ABCA 281, the Alberta Court of Appeal issued a decision partly staying the contempt order against the mother with respect to spousal support at $1,000 per month, effective Sept. 1, 2024, as per the interim order issued in February 2022.
This decision was intended to address the immediate financial needs of the applicant and the child. The appeal court applied the test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311, with the child’s best interests in mind.
First, the appeal court agreed that the applicant’s claim raised a serious issue, particularly given the serious nature of contempt proceedings. The applicant alleged procedural unfairness when the case management judge proceeded with the contempt hearing in her absence despite her request for an adjournment due to medical reasons.
Next, the appeal court considered the second and third elements of the test for granting a stay – irreparable harm and balance of convenience – together. The appeal court found that the balance of convenience favoured partly staying the contempt order after considering the overall circumstances, including the best interests of the child.
The appeal court acknowledged the conflicting evidence but concluded that reinstating spousal support would mitigate the hardship on the child. The appeal court noted that the applicant argued that the suspension of spousal support caused financial hardship to her and indirectly affected the child.
