Applicant failed to prove contempt filing would further pending appeal related to divorce
The Alberta Court of Appeal has recently ruled that it does not have jurisdiction to grant a contempt order involving matters which were not “incidental to an appeal.”
In Moshinsky-Helm v. Helm, 2022 ABCA 67, the applicant sought a contempt order against the respondent, her ex-husband, for his alleged failure to comply with several disclosure and cost orders issued by the Alberta Court of Queen’s Bench.
The applicant’s contempt action was in relation to three appeals that she had commenced against the respondent from a pre-trial order that permitted the respondent to refinance a mortgage property owned by his corporation. The order was from a divorce judgment granting the uncontested divorce and the division of matrimonial property and spousal support after trial.
In the course of the proceedings, the court issued several orders against the respondent, including orders to pay costs and to provide disclosure in relation to his corporation’s finances. The applicant asserted that the respondent had failed to comply with these orders and was in contempt of court as a result.
The appellate court refused to address the applicant’s contempt application on the ground that it did not involve matters “incidental to an appeal” that a single judge of the court can decide, in accordance with Rule 14.37 of the Alberta Rules of Court.
The court found two reasons why the contempt application was not incidental to an appeal. First, the applicant failed to prove how a finding of contempt against the respondent arose from or was related to furthering her pending appeals. Second, the contempt application required the determination of an issue that the applicant raised in her pending appeal, which was not a matter that a single judge of the court in chambers can decide.
The court also said that the orders at issue were granted in the Court of Queen’s Bench, so an application for a declaration of civil contempt should have been brought before that court, in accordance with the applicable rules of procedure. The court further found that the application likewise sought a finding of criminal contempt under the Criminal Code, which was outside the scope of the facts of this case. The court ultimately refused to grant the application because it did not have jurisdiction.
