26 June 2014

SCC to Hear Appeal Involving Challenge to Validity of Child Support Guidelines

The Supreme Court of Canada today granted leave to appeal in the case of Strickland v Canada, a decision of the Federal Court. Two things make this unusual. First, the Supreme Court of Canada hardly ever grants leave to appeal in family law cases. Second, the appeal concerns the validity of the Child Support Guidelines.

The Child Support Guidelines were implemented by the federal government in 1997. They are a regulation to the Divorce Act; the Divorce Act is the federal law, in force across Canada, that deals with divorce, child support, spousal support and children's parenting arrangements after separation. (The Guidelines have been adopted by all of Canada's provinces and territories, except Quebec, as a part of their local laws on family breakdown.) The Divorce Act says that when a judge is making an order for child support, the judge must do so "in accordance with the applicable guidelines."

Although there are some exceptions, s. 3(1) of the Guidelines says that "the amount of a child support orders ... is ... the amount set out in the applicable table, according to the number of children ... and the income of the spouse against whom the order is sought." The tables are probably the Guidelines' best known feature and, as s. 3 suggests, they set out how much money must be paid as child support according to the payor's income and the number of children support is being paid for.

According to the decision appealed from, the appellants argued that the Child Support Guidelines "contradict the statutory provisions under which they were enacted," and therefore the federal government lacked the proper authority to implement them. The appellants took the view that the Guidelines:
"[5] ... do not appropriately reflect the requirements of the Divorce Act, which mandate that [child] support is a joint spousal obligation and is to be based on the relative ability of the spouses to contribute to the support of the children of the marriage. [They] argue that the Guidelines overcompensate the former spouses where there is a joint custody arrangement and the children reside part of the time with the payor parent."
One of the appellants signed an interim child support agreement and sought to lower the amount of his payments. Another appellant was making voluntary payments of child support which were calculated under the Guidelines. Another appellant was paying child support to one spouse as a result of an arbitrator's award and child support to a second spouse as a result of a court order. Another appellant was receiving child support and agreed that the amount should be lowered.

The reasons from the Federal Court don't tell us much more about the appellants' arguments than this, as the decision primarily concerns the federal government's application to turf the appellants' claim on the bases that the appellants aren't apply to make their claims, that their claims are no more than roundabout ways of attacking orders they don't like and that their claims are abuses of process. The court allowed the federal government's application, and it is this decision which the appellants have successfully brought to the Supreme Court of Canada.

Ultimately, this appeal is of primary importance as a result of the Federal Court's view on whether the appellants had the right to challenge a federal regulation, however if the Supreme Court of Canada allows the appeal, it will be very interesting to see what becomes of the challenge to the Child Support Guidelines when the claim is finally heard.

My thanks to Eugene Meehan's Supreme Advocacy newsletter for alerting me to the success of this leave application.

3 comments:

  1. Hopefully they win their case. The Canadian Guidelines are out of touch with reality. Both parents incomes should be taken into account, the actual costs of raising children should be determined, and the access costs of the non-custodial parent should then be deducted. The table amounts turn the NCP into an ATM machine for 20 + years and the monthly payments exceed his share of the costs.

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    Replies
    1. I'm afraid I disagree with you. The Guidelines do have their faults, to be sure, but the ills associated with determining the actual costs of raising children was one of the reasons for their enactment and is one of their key benefits. They do take into account the incomes of both parents, when both incomes are relevant, such as when the parents have the children for almost an equal amount of time or share their children's extraordinary expenses.

      You are of course entitled to your opinion. If you are unhappy with the Guidelines, you should contact your MP and suggest an amendment to either or both of the Divorce Act and the Guidelines.

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    2. I'm not the same anonymous guy as above.
      I've actually spoken with my MP, and the PMO about the flaws of the existing system. The PMO's office isn't too interested, despite their plan of "putting families first". JT isn't interested as well I contacted them, and family law reform is not on their agenda.

      Though a change could be needed, nobody is going to win an election on CS reform. You'd anger recipients, and make payors happy.

      My case is a little different. My challenge with the guidelines follow where the law does not take the whole picture into play. I have three kids (one whom is disabled) with my spouse. An ex came out of the woodwork, and now I have a 4th child. Will I support the child? Yes. However the table amounts are excessive as they do not take other children into the equation. They are called guidelines, but judges are too scared to deviate from them. We live in different cities so shared-parenting is not an option. Base Support is 16% of my take home pay, s7 is another 3%, when the child goes off to post-secondary the child will consume 25% of my take home pay. We will not be able to send my other three children to post-secondary. I'm all for support, but the support has to be EQUAL for ALL four of my children. I cannot support a system that creates a golden child at the expense of the others.

      I do have issues with the constitutionality of the maintenance agencies being able to seize a passport. I have a constitutional right to leave Canada. However a passport is required to enter almost any foreign country. A passport is a priviledge. The two do not jive.

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