Justice Delayed Is Justice Denied… But Is Faster Always Better? Understanding Procedural Fairness in Parenting Cases
Family law disputes can take years to reach trial and during that time, parents are left living with uncertainty. Children continue to grow and change. Families want answers and closure.
Access to justice is an ongoing concern for courts across Canada as they continue to look for ways to resolve family disputes more quickly and efficiently. But there is another principle that is just as important: justice must also be fair.
Sometimes those two goals work together. Other times, they can be in tension. Moving a case forward quickly can save time and money, but it can also create the risk that important decisions are made without proper consideration, testing, and treatment of the evidence. A recent Alberta court of appeal decision illustrates this tension perfectly.
In LES v NBM, 2026 ABCA 166, Crossroads Law lawyers Camille Boyer and Yasemin Shihab Ahmed successfully appealed an interim parenting order that had significantly increased a father's parenting time before trial. The court of appeal concluded that the process used to reach that decision was procedurally unfair.
What Is Procedural Fairness?
Procedural fairness sounds like a complicated legal concept, but the basic idea is actually quite simple.
Before a court makes an important decision that affects someone's rights, each person should have a meaningful opportunity to:
- Present their evidence;
- Respond to the other party's evidence;
- Challenge evidence they disagree with; and
- Have their case decided using a fair and consistent process.
These safeguards exist because judges make decisions based on evidence. If the evidence has not been fully presented or properly tested, there is a greater risk that the court reaches the wrong conclusion. Procedural fairness helps reduce that risk.
Why This Matters in Parenting Cases
Parenting cases are different from other legal disputes. When parents separate, courts sometimes must make interim parenting orders before trial. An interim order is a temporary arrangement that governs parenting while the litigation continues. These orders can provide much-needed stability and prevent families from remaining in limbo while waiting for a final hearing.
Whether the court is considering an interim application or making a final decision on parenting at trial, the question ultimately comes back to what is in the child’s best interests.
Interim applications, though necessary in some instances, have important limitations. Unlike a trial, interim applications are usually decided using written affidavits rather than live witnesses.
That means:
- Witnesses are generally not cross-examined (questioned by the other side’s lawyer);
- Judges cannot easily assess credibility where the evidence conflicts;
- Expert opinions may still be incomplete; and
- Important factual disputes often remain unresolved.
For that reason, courts have repeatedly emphasized that interim applications are not intended to replace a full trial. Instead, they are generally designed to preserve stability until better evidence becomes available.
Why Courts Usually Avoid Major Interim Changes
It is easy to assume that if a judge believes a parenting schedule should eventually change, the court should simply make that change immediately. The reality is more complicated.
Family courts recognize that repeatedly changing a child's parenting schedule can itself create instability. Without some limitations on interim changes to the schedule, the result could be a child whose parenting schedule changes every few months while parents continue bringing new interim applications. Each change may be well-intentioned, but frequent changes can make life more difficult for the child the court is trying to protect.
That is why Alberta's appellate courts have cautioned numerous times against repeated interim parenting applications unless there are compelling reasons to depart from the existing arrangement. The goal is not simply to avoid extra court appearances, but to provide children with as much consistency as possible until the court has the evidence needed to make a fully informed decision.
The Facts Behind LES v NBM
The parents had one young child. Following their separation, an interim parenting order was made in early 2024. Under that arrangement, the child lived primarily with the mother while spending regular parenting time with the father. The parents took part in a Practice Note 8 parenting assessment (commonly known as a “PN8”). These assessments involve a qualified parenting expert who evaluates the family and makes recommendations for parenting arrangements based on the child's best interests.
After completing the assessment, the evaluator in this case recommended that the father's parenting time gradually increase toward a shared parenting schedule. The mother disagreed with the assessment.
As Alberta's PN8 specifically allows, the mother retained another expert to prepare a formal critique of the report. The critique had begun and, importantly, the parties had already scheduled a four-day parenting trial where:
- The original PN8 assessor would testify;
- The mother's expert preparing the critique would testify;
- Both experts could be cross-examined; and
- The judge would hear all the evidence before making final parenting decisions.
In other words, the process for fully testing the evidence was already in place.
The Interim Application
Before the trial, and before the critique had been completed, the father brought an application asking the court to increase his parenting time immediately based largely on the recommendations contained in the PN8 assessment. The chambers justice granted the father’s application, allowing the PN8 assessment to be considered and increasing the father’s parenting time before trial due to urgency. The chambers judge found the matter was urgent because:
- The child was still very young;
- It was important for him to continue strengthening his relationship with both parents; and
- The trial remained approximately one year away.
The court ordered the father’s parenting time to increase in stages, with the first increase taking effect immediately. Several months later, his parenting time would automatically increase again to 6 out of 14 days, as long as the child did not show any concerning behaviours. This meant the parenting schedule could change significantly before either expert testified and before the mother’s expert completed the review already authorized by the court.
The mother appealed the interim parenting order to the Alberta court of appeal.
What the Court of Appeal Decided
The court of appeal allowed the mother’s appeal. It did not decide whether shared parenting was ultimately appropriate but instead, focused on something more fundamental: Was this the right time, and the right process, to make such significant changes?
The court concluded that it was not.
Several factors were particularly important to that decision:
- The Evidence Was Still Incomplete - The mother's expert had not yet finished their critique of the PN8 assessment. However, the trial judge would soon have the benefit of both expert opinions. Rather than relying on only one completed report, the trial judge would be able to compare both experts' conclusions before making long-term parenting decisions.
- The Experts Had Not Been Cross-Examined - Expert opinions become much stronger and more reliable evidence when the expert attends court, answers questions, explains their reasoning, and responds to criticism. That process had not yet occurred. The court of appeal recognized that both experts were already scheduled to testify at trial, and that waiting would allow the court to hear much better evidence.
- Important Facts Were Still Disputed - The parties disagreed about numerous issues relating to parenting. Those disputes could not easily be resolved through competing affidavits alone. Appellate courts have repeatedly cautioned that significant parenting changes should generally not be made where important facts remain in dispute and credibility cannot be properly assessed. In trial, the court would be able to assess credibility after observing both parties being cross-examined on their evidence.
- There Were No Extraordinary Circumstances – Practice Note 8, which sets out the process for parenting assessments, includes an important limitation. It states that these assessments should generally not be used in interim applications unless there are extraordinary circumstances. The court of appeal concluded that no such circumstances existed in this case. The child was doing well, and the trial was already scheduled. The better course was to wait for the trial judge to hear all the evidence.
- Waiting Would Have Avoided Further Litigation - One of the most interesting parts of the decision was the court's observation that the interim order had "predictably" led to unnecessary litigation. The appeal itself became necessary because significant parenting changes had been made before the evidence was fully tested. The court noted that waiting for the scheduled trial would have avoided many of these problems altogether.
Does This Mean Interim Orders Should Never Change?
Interim parenting orders can and should be changed when circumstances truly require it. For example, courts may need to act quickly and even make significant changes to a parenting schedule where there are genuine safety concerns, parental abduction risks, serious neglect, or other urgent situations affecting a child's well-being. However, those cases are the exception, not the rule.
Where a child is safe, stable, and doing well, and where a full trial is already scheduled, courts are generally reluctant to make substantial changes based only on affidavit evidence. That is because, whenever reasonably possible, parenting decisions are too important to make without the benefit of the best available evidence.
Balancing Speed and Fairness
This decision highlights an important reality about access to justice. Lawyers, judges, and litigants all want family law cases resolved more quickly. Long delays increase stress, legal costs, and uncertainty for parents and children alike. But faster is not always better.
Efficiency and timeliness matter, but they cannot be at the expense of procedural fairness. Family law decisions, particularly those related to parenting matters, are extremely important decisions that will impact and change the lives of children, parents, and families. These decisions must be based on reliable evidence and a fair process. Finding the right balance is one of the greatest challenges facing modern family law.
What Parents Can Learn from This Decision
If you are involved in a parenting dispute, this decision offers several important lessons.
- Interim orders are meant to be temporary;
- Not every disagreement justifies bringing another interim application. Repeated applications often increase legal costs, prolong conflict, and create additional uncertainty for children;
- Expert reports are valuable, but courts generally prefer to hear experts testify before relying heavily on their opinions, especially where those opinions are contested and where important parenting decisions are at stake; and
- Procedural fairness is not simply a technical legal rule. It exists because the process used to reach a decision can be just as important as the decision itself.
In this case, the court of appeal reminds us that although delay is frustrating, moving too quickly can create its own problems. Where significant parenting decisions are involved, fairness sometimes means waiting for the evidence to be fully developed and properly tested before making lasting changes.
Justice delayed is justice denied. But faster does not always mean fairer.
If you are involved in a parenting dispute, understanding both your rights and the process can make a meaningful difference. Our family law team regularly assists clients with interim applications, parenting disputes, appeals, and trials throughout Alberta and British Columbia. Contact us today to arrange a free 20-minute consultation and discuss your options.
The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.
