In-person litigants Kelly Eccles and Justin Eccles are racking up more travel miles in Alberta’s Court of Appeal, following Ms. Eccle’s latest appeal…appeal number 7, but who’s counting?
Their latest foray, Eccles v. Eccles 2026 ABCA 154, follows a similar pattern. Ms. Eccles, unhappy with the lower court decision of their case management judge brought an appeal which was doomed to fail but introduced a new element: a Charter argument.
In a lower court hearing in September 2025, the case management judge dismissed Ms. Eccle’s application to adjourn a scheduled case management meeting. In the same decision the judge also refused her application for leave to file a Notice of Constitutional Question.
Her application challenged the entire proceedings before the Alberta Court of King’s Bench as breaching her rights under sections 7, 15 and 28 of the Charter of Rights and Freedoms. The case management judge declared that her Charter argument was “manifestly frivolous” because “he could not issue the remedy sought against himself. Citing R. v. Haevischer 2023 SCC 11 at paras. 85-86 he held that he did not have the authority to adjudicate the constitutionality of his own decision making or the decision-making of the justices of the Court of Appeal.
Ms. Eccles then applied to the Court of Appeal for leave to appeal both the adjournment order and filed a new Notice of Constitutional Question. Her main argument was that certain parenting issues were omitted from the court’s direction to proceed to trial, alleging procedural unfairness, and denial of equal access to the courts which prevented her from pursuing interim and final parenting relief.
Ms. Eccles also alleged that the case management judge had discriminated against her “as a woman and survivor of domestic violence”, decisions which have denied her “fundamental justice, procedural fairness, and effective access to the courts”.
The appeal court first remarked that “leave to appeal” adjournment or scheduling orders was required as a gatekeeping function to avoid delay and maintain proportionality to the litigation process, by restricting access to appeals that do not involve the final adjudication of a party’s substantive rights. These types of orders are highly discretionary and entitled to an enhanced level of deference.
They found that despite Ms. Eccle’s attempts to turn minor procedural matters into larger issues of fairness, her argument was not supported by the record and she had not raised any identifiable question of law or precedent that had any significance to the profession at large and therefore, no precedential value.
Further, they ruled that her appeal had no prospect of success as the case management judge was well-acquainted with the parties and the facts of their case. The judge’s decision to order the non-parenting matters to go to trial first was well within his discretion.
With respect to the Charter issue, the appeal court determined that while rare, Charter issues may be raised for the first time on appeal, citing Guidon v. Canada 2015 SCC 41 and R. v. Downes 2023 SCC 6, where the test is that it is a matter for the Court’s discretion, taking into account all the circumstances, including the state of the record, fairness to all parties, the importance of having the issue resolved by the court, its suitability for decision, and the broader interests of the administration of justice.
The Court also noted that the requirement of a full evidentiary record presented a major stumbling block for Ms. Eccles, together with the lack of the identification of a specific Charter breach. Her complaints were directed at allegations of systemic rights violations in the proceedings as a whole and their cumulative impact on her. Further, the Court held that the record did not support any Charter violations in the exercise of the case management judge’s discretion.
The appeal court rejected her premise that her experience with case management was evidence of broader systemic issues within the justice system “rigged against survivors of domestic abuse in the family law context”.
The appeal court had earlier dismissed an appeal where Ms. Eccles alleged the case management judge was biased against her, finding that her current appeal repeated the same themes.
Additionally, the court made a final point to disabuse Ms. Eccles of her belief that she was precluded from having a future trial on parenting, noting that while other matters would go first, there was no order barring a trial on parenting.
This article was first published in LAW360, a publication of LexisNexis Canada.