MAINTENANCE AND FEEDING – Child Support Guidelines – Legislation – Interpretation

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Father’s request to declare the Federal Child Support Guidelines ultra vires the Divorce Act. The mother and father married in 2004 and had a child together in 2005. They divorced in 2008. The father paid spousal support and children. Both parents brought applications to this Court on issues of child and spousal support. The father challenged the vires of the Guidelines on the grounds that the Governor in Council (GC) exceeded his authority under the Divorce Act when he promulgated the Guidelines. The mother did not take a position on the vires request and did not participate in the request. The Attorney General of Canada (AGC) was an intervener in this case. The father argued that the Guidelines were not legally permitted because they did not recognize the relative ability of each spouse to contribute and because the Table amounts in the Guidelines did not reasonably reflect maintenance costs. reasonable children. The father acknowledged that the Governor in Council was empowered to make strategic choices, but argued that when the guidelines were considered as a whole, they were illegal because they went beyond what Parliament allowed the Governor to do. enact under the Divorce Act. The AGC noted the broad power granted to the Governor in Council under the Divorce Act and argued that the Guidelines were consistent with that power.

DECISION: Motion dismissed. Most of the issues raised by the father did not fall within the scope of vires review because they sought to challenge policy decisions of the Governor in Council and ignored the broad discretion available to the Governor in Council when promulgating policies. regulations under a broad statutory grant. Section 26.1 (1) of the Divorce Act has given the Governor in Council broad power to make child support guidelines. The choice of the 40/30 equivalence scale by the GIC was neither arbitrary nor unreasonable. The inclusion of s. 7 of the Guidelines did not represent a break in logic or an attempt to reverse engineer an outcome. It was open to the ICG to create a generous and flexible approach to the provision of child support. While s. 3 of the Guidelines set presumed amounts, the Guidelines conferred significant discretion on the courts. There was no evidence that the Governor in Council had acted arbitrarily. The Divorce Act did not prescribe a specific formula that was ignored or broken by the Governor in Council.

Auer against Auer, [2021] AJ No. 651, Alberta Court of Queen’s Bench, TG Rothwell JCQBA, May 11, 2021. Digest No. TLD-June212021004


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