Summary of Court Action
The Guidelines are a regulation under the Divorce Act (Act). A child support order under the Act is supposed to: (i) recognize that the spouses have a joint financial obligation to maintain the child; and (ii) apportion that obligation between the spouses according to their relative abilities to contribute. Section 26.1(2) of the Act confirms that these principles are also supposed to be the foundation of the Guidelines.
The Guidelines are a set of rules and tables for determining child support amounts. There are tables for each province and territory that are used to establish the “table” amount of child support the NCP is required to pay. Section 3 of the Guidelines prescribes the table amount as the “presumptive amount” for the NCP to pay based only on three factors: (i) their annual income, (ii) province of residence and (iii) number of children. The NCP is defined to be a parent with less than 40% custody time and that is the situation in the Action. The “presumptive amount” means that will be the starting point and it can be increased rather easily via what are called “Section 7 Expenses”. Decreasing the “presumptive amount” on the other hand, is extremely difficult. A decrease can only be achieved after a hearing and requires the NCP be demonstrably worse off than the CP.
Calculation of the table amounts is based on a formula, which is discussed further in the “Mathematics of the Guidelines” section of the website. As discussed in the “Problems with the Guidelines” section of the website, there are numerous problems with this formula.
If both parents have more than 40% custody time, or either parent earns more than the maximum income covered by the table, the table numbers are still a material component of resolving such situations. Therefore, it is argued that grossly incorrect table amounts have a pervasive effect.
The Action involves a NCP that at various points has had children from 3 different marriages to support. As a result of the Guidelines, the NCP’s financial resources have been disproportionately directed towards supporting the child from the second marriage over the children from his other marriages and his wife. The NCP is a medical researcher of retirement age who makes what would be a comfortable income, but has no material net worth. In contrast, the CP of the child from the NCP’s second marriage, is financially very comfortable being a doctor with a husband who is a lawyer.
This Action targets the inconsistency between Section 26.1(2) of the Act and the Guidelines. That is, contrary to Section 26.1(2) of the Act, the Guidelines do not actually require financial contributions from both parents, nor contributions proportionate to their relative abilities to earn income. Regulations that fail to implement Parliament’s intent, as expressed in the governing legislation, are ultra vires and therefore, of no force or effect.
The road to having the Action heard has been long and procedurally difficult. Initially, an application for judicial review of the Guidelines was commenced before the Federal Court in 2013. However, the Federal Department of Justice (DOJ) argued against the Federal Court hearing the matter. This was even though it was clear the Federal Court had the authority to do so and it appeared a provincial superior court did not. Determining the proper court was appealed all the way to the Supreme Court of Canada in 2015. There, it was confirmed that, notwithstanding the Federal Court Act, on the facts, the Action had to be pursued before a provincial superior court.
Following the Supreme Court’s judgement, the DOJ applied for intervenor status in the Alberta action. Determining the status the DOJ should be given as a respondent took a judgement of the Alberta Court of Appeal in December 2018. The Action is now at the point where a hearing is scheduled on the merits.
Settling whether the Guidelines are ultra vires of the Act is scheduled to take place at the Court of Queen’s Bench in Edmonton, Alberta on December 2-4, 2020. Material documents in the legal proceeding are attached below and will be added to as the matter progresses.