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MAINTENANCE AND SUPPORT - Child support guidelines - Legislation - Interpretation

Tuesday, June 22, 2021 @ 1:25 PM  


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Application by the father to have the Federal Child Support Guidelines held ultra vires the Divorce Act. The mother and father married in 2004 and had one child together in 2005. They divorced in 2008. The father paid spousal and child support. Both parents had applications before this Court dealing with ongoing child and spousal support issues. The father challenged the vires of the Guidelines on the basis that the Governor-in-Council (GIC) exceeded its authority under the Divorce Act when it promulgated the Guidelines. The mother took no position on the vires application and did not participate in the application. The Attorney General of Canada (AGC) was an intervenor in this matter. The father took the position that the Guidelines were not lawfully authorized because they failed to recognize the relative ability of each spouse to contribute and because the Table amounts in the Guidelines did not reasonably reflect the costs of reasonably maintaining children. The father acknowledged that the GIC was permitted to make policy choices but argued that when the Guidelines were considered as a whole, they were unlawful because they exceeded the scope of what Parliament permitted the GIC to enact under the Divorce Act. The AGC noted the broad grant of authority given to the GIC under the Divorce Act and argued that the Guidelines were consistent with that grant of authority.

HELD: Application dismissed. Most of the issues raised by the father fell outside the scope of a vires review as they sought to impugn the GIC’s policy decisions and ignored the broad discretion that the GIC enjoyed when enacting regulations pursuant to a broad statutory grant. Section 26.1(1) of the Divorce Act conferred a broad grant of authority on the GIC to pass guidelines related to child support. The selection of the 40/30 equivalency scale by the GIC was not arbitrary or 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 GIC to create a generous and flexible approach to the provision of child support. While s. 3 of the Guidelines set presumptive amounts, the Guidelines vested significant discretion in courts. There was no evidence that the GIC acted arbitrarily. The Divorce Act did not prescribe a specific formula that was ignored or breached by the GIC.

Auer v. Auer, [2021] A.J. No. 651, Alberta Court of Queen's Bench, T.G. Rothwell J.C.Q.B.A., May 11, 2021. Digest No. TLD-June212021004