Tag: child support

Adequate Alternatives

Last week, the Supreme Court issued an interesting decision which, although apparently only concerned with judicial review (of the administrative law sort) and the respective jurisdiction of the Federal and superior courts, also tells us something about the role of the courts more generally. The case, Strickland v. Canada (Attorney General), 2015 SCC 37, was an appeal from decisions by the Federal Court and the Federal Court of Appeal not to hear an application for judicial review of the legality of the Federal Child Support Guidelines, which the applicants said did not comply with the requirements set out in their enabling legislation. The Supreme Court unanimously dismissed the appeal, and held that the federal courts were right to decline to exercise their undoubted jurisdiction to review the Guidelines’ legality.

Both federal courts concluded that provincial superior courts would be better placed to consider such a challenge, within the context of a case where the Guidelines would be applicable. Such cases, and family law matters more generally, are the preserve of the provincial courts. Federal courts have very little say in family law, and lack the expertise in this area. The interests of justice, they thought, would be better served by having a more expert court consider the issue.

The first question which the Supreme Court addressed was whether it was indeed the case that a provincial superior court could consider a challenge to the Guidelines’ legality. Section 18 of the Federal Courts Act, after all, gives the federal courts exclusive jurisdiction to review the actions of the federal administration, including the regulations it issues, such as the Guidelines. However, Justice Cromwell, for the majority, concluded that “[a] provincial superior court can hear and determine a challenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properly before it.” [15] He pointed out that the Court already held, in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, that superior courts could exercise their jurisdiction to award damages against the federal Crown without the federal courts having first considered the legality of the Crown’s conduct in the context of an application for judicial review. This decision, Justice Cromwell said, “support[ed] the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts.” [22] Thus if a litigant who is seeking or opposing a child support order wants to challenge the legality of the Guidelines in a case before a superior court, he or she may do so.

Given this conclusion, the second question for the Supreme Court was whether the federal courts were right to decide that such a challenge would be a better vehicle for considering the legality of the Guidelines then an application for a declaration made to the federal courts. The courts’ power to review the legality of the decisions of governments (as well as some other organizations) is discretionary, meaning that in some circumstances, the court will decline to exercise it. This is particularly so, Justice Cromwell pointed out, when the remedy sought is a declaration. As Justice Cromwell further pointed out, “[o]ne of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative,” [40] which “need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review.” [59] In this case, the question was whether challenging the legality of the Guidelines before the provincial superior courts was such an alternative, an issue that must decided by looking at all the circumstances of the particular case, including “the purposes and policy considerations underpinning the legislative scheme in issue.” [44]

The appellants claimed that going to the Superior Courts was not an adequate alternative for them. They did not want to (re)litigate their child-support cases ― they only sought to have the Guidelines themselves declared illegal, and thus had no reason for turning to the superior courts. But unlike litigants asserting a private right, the “appellants do not have a right to have the Federal Court rule on the legality of the Guidelines,” [48] and the Court was entitled to refuse to do so. In making that decision, it could not

simply look at the alleged advantages of judicial review from the appellants’ perspective so that they can make their point, but also must engage with the more fundamental questions of how judicial review interacts with the operation of the Guidelines in family law litigation in the provincial courts. [50]

In this regard,

it would be curious, to say the least, if the legality of a central aspect of [the family law] regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters. [51]

Finally, a ruling by the federal courts that the Guidelines are illegal would not prevent a “proliferation of litigation.” For one thing, it “would not be binding on any provincial superior court.” [53] For another, “[i]t would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases.” [53] There would be other consequences, too, with which only the superior courts could deal.

Ultimately, says Justice Cromwell. family law expertise is required to adequately decide of the challenge to the Guidelines’ legality. It is provincial superior courts that deal with the issues on which the disposition of such a challenge would depend, and have a sense of the Guidelines’ real-life operation and effects. Even if they cannot grant the precise remedies sought by the appellants, it is they who should hear their claims.

* * *

I think this is the right decision. It reminds me of Bilodeau c. Canada (Ministre de la Justice), 2009 QCCA 746. Mr. Bilodeau sought to have Québec’s courts review a decision of the federal Justice Minister refusing to review his criminal conviction, which he claimed was a mistake. The majority of the Québec Court of Appeal sided with the government, holding that a decision of the federal administration could only be reviewed by the Federal Court. But Justice Duval Hesler (as she then was, and for whom I did some research as a part-time clerk) dissented, arguing (among other things) that “it is desirable that a court engaged this [judicial] review know, understand, and be in the habit of applying the relevant principles” [106] of law. Stickland does not overrule Bilodeau, since it does not affect the majority’s conclusion that the Mr. Bilodeau’s application was not “properly before” the provincial courts at all, but I am happy to see the now-Chief Justice’s logic vindicated.

In a way, however, Justice Cromwell’s reasons are actually unsatisfactory. Perhaps this is too much to ask of a judicial opinion as opposed to an academic study, but I wish he had explored the parallel between the issue he was facing and that of public interest standing ― on which he is, after all, the Supreme Court’s resident expert, having authored its opinion in the leading case on the subject, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524. As Justice Cromwell explained, the claim in Strickland was for a “public law remedy.” The appellants were not looking for anything for themselves, at least not immediately. Their situation was somewhat different from the usual public interest litigants, because their legal rights would have been affected by an invalidation of the Guidelines, but their claim was arguably more similar to public interest one than to a traditional private action.

Under the Downtown Eastside framework, courts will grant a litigant who does not have a personal stake in the dispute public interest standing to contest the legality (and often the constitutionality) of government action if they consider the claim to be a “reasonable and effective” vehicle for having the issue determined. The standing inquiry is, of course, concerned with the claimants, because there is a suspicion that, lacking a personal stake in the dispute, they will not pursue their case effectively, and might interfere with the rights and autonomy of persons who do have such a stake. Accordingly, courts ask themselves whether would-be public interest litigants are genuinely concerned about the issues they are raising, and whether they will be able to litigate them in such a way as to enlighten the courts, and possibly to bring to bear evidence and arguments that would not be available to other parties. But courts are also concerned with using their proverbially scarce resources effectively, as well as with ensuring that an adversarial debate will take place. And, although not fully determinative, the existence of alternative effective means of addressing the issue will clearly be of considerable importance.

It seems to me that the concerns that were weighing on Justice Cromwell’s mind in Strickland are not very different. Ultimately, the issue is whether the case, as framed by the appellants, was a reasonable and effective vehicle for addressing the issue it presented. To be sure, unlike in public interest standing cases, Justice Cromwell (as well as the courts below) worry not about the proposed parties’ capacity to pursue the case, but about the proposed adjudicators’ ability to resolve it. The alternative whose existence might justify refusing the claim to proceed is not the possibility that other litigants could make the same arguments (possibly) before the same court, but that (possibly) the same litigants could make the same arguments before a different court. But these are two aspects of the same problem.

Especially with public interest litigation, which raises complex and often fact-intensive issues ― and has the potential to do so in a relative factual vacuum ― courts are concerned about being able to settle disputes effectively. This may be difficult to do because the parties fail to provide enough information or because the court itself lacks the necessary expertise. For better or worse, Canadian courts aren’t exactly shy about exercising their jurisdiction even in such difficult cases. But it is reassuring to see that, when an alternative recourse susceptible of making for better-informed adjudication exists, they can still insist on it being taken.

Difference without Discrimination

The Québec Court of Appeal delivered an important decision last Friday, Droit de la famille ― 139, 2013 QCCA 13, upholding the constitutionality of Québec’s child-support guidelines, despite the fact that their application results, in many cases, in substantially lower child-support awards than that of the federal guidelines which, in one way or another, now apply in the other provinces. The appellants argued that the difference amounted to discrimination contrary to the equality guarantee of s. 15(1) of the Canadian Charter of Rights and Freedoms. At trial, the judge agreed that it did, but held that the infringement of s. 15(1) was justified by s. 1 of the Charter. Now, in a judgment signed by the entire five-judge panel, the Court of Appeal held that there is no s. 15(1) infringement at all.

The reason for the existence of the two separate sets of guidelines is the somewhat messy division of powers over family matters between Parliament and the provincial legislatures. Pursuant to s. 91(26) of the Constitution Act, 1867, Parliament has competence over “marriage and divorce” ― which includes the child-support obligations of divorcing parents. Provinces (in addition to a competence over the “solemnization of marriage” (s. 92(12)), have power over “property and civil rights in the Province” (s. 92(13)), which includes the child-support obligations of parents who are not divorcing because they had never married in the first place. The upshot is that children of never-married couples in every province faced a different legal regime than those of their counter-parts in other provinces and those of divorcing couples in the same provinces. Now my knowledge of family law is very limited indeed, but I don’t suppose any of that would have struck anyone as problematic in 1867, if such questions would even have crossed anyone’s mind at a time when divorce was all but impossible and “bastard” children were very much second class citizens. But while our views of justice in the family realm have changed, the constitutional division of powers hasn’t, so Parliament and the provinces have had to work around it.

The solution they came up with was for Parliament to enact (or rather, to delegate to the Governor-in-council the power to enact) a set of child-support guidelines that would apply in divorce cases, which provinces could make applicable to never-married parents; alternatively, a province could come up with its own set of guidelines, which the federal government would, on some conditions, make applicable in divorce cases in that province. Either way, the legal regime applicable to support obligations for all children in the same province would be the same―but there could be differences between provinces. Most provinces chose the first option, using the federal guidelines for all cases. But Québec opted for the alternative, coming up with its own set of guidelines, which the federal government then made applicable to divorcing parents in Québec. In some ways, Québec’s guidelines were similar to the federal ones, but there were also significant differences in the factors taken into account to determine the amount of child support, often resulting in lower amounts being awarded under the Québec guidelines.

Hence the complaint of discrimination. But not any difference in the way the law treats people or groups amounts to discrimination pursuant to s. 15(1) of the Charter. The difference must be based on one of the grounds (such race, gender, religion, etc.) enumerated in that provision or an “analogous ground” (such as citizenship and sexual orientation). The relationship of the difference complained of and a prohibited ground of discrimination is the central issue in this case.

The appellants argued that they were being discriminated against on the basis of their place of residence (that, Québec as opposed to the rest of the country). But, as the Court of Appeal pointed out, the Supreme Court has always rejected claims that place of residence was an “analogous ground” for the purpose of s. 15(1). Perhaps the most dramatic such case was Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995, where the appellant had been prevented from voting in Québec’s referendum on the Charlottetown Accord because he had not lived in the province for 6 months at the time of the vote and in the referendum on the same issue organized by the federal government in the other provinces because he was now living in Québec. The only “exception” to this rule concerned the status of off-reserve Indians, who, as the Supreme Court pointed out, face much more intractable choices than other Canadians when it comes to choosing their place of residence. Theirs is a special situation that does not bear on this case. Furthermore, said the Court of Appeal, in a federal country such as Canada the equality guarantee must be interpreted in light of the federal principle and of the fact that it can result in different legal regimes being applicable to similarly situated persons in different parts of the country. “Thus, differential treatment depending on the province of residence cannot, a priori, be suspect from the standpoint of the right to equality” (par. 62, translation mine). Even when differential treatment results from the application of the same federal statute (rather than from a comparison between the laws of two different provinces), it is not constitutionally suspect.

I think that’s the right decision. Provinces have different needs and different values; they are distinct political communities. The Charter should not become a means of preventing them from making different choices. And, because of the entanglement of federal and provincial responsibilities, which only becomes more complex as society changes and becomes increasingly different from that of 1867, we need co-operative federalism, including federal laws that create, or incorporate by reference to provincial law, different rules for different provinces. The Court of Appeal recognized this reality.