Federal Appeal


Courts

JURISDICTION

Higher courts would benefit from practical expertise of provincial superior courts

Applicant fathers brought application alleging that Federal Child Support Guidelines (Can.), contradicted provisions of Divorce Act (Can.), under which they were enacted. Fathers sought to have Federal Court declare that Guidelines were ultra vires DA. Attorney General applied to have application dismissed. Federal Court Judge dismissed application. Judge found that four fathers lacked standing and did not meet test for public interest standing. Judge found that one father’s application was impermissible collateral attack and abuse of process. Judge found that one father had standing but court should decline to exercise jurisdiction to hear application because issues would be more appropriately dealt with in provincial superior court. Father appealed. Appeal dismissed. Judge did not err in law in concluding that provincial superior courts had jurisdiction to determine vires of Guidelines in context of proceedings for which they had jurisdiction under Act and to decline to apply them if found to be ultra vires. Judge erred in principle in applying and describing third factor to be considered in determining public interest standing. Appeal should be determined on issue of whether or not judge erred in declining to exercise jurisdiction and it was assumed fathers could have some standing. Judge’s discretion not to hear matter should be respected. Vires of Guidelines should be determined by court that developed particular expertise to properly assess argument in factual context. It would be more appropriate to adjudicate issues in context of divorce proceedings because it would ensure full participation of spouse seeking support. Higher courts would benefit from practical expertise provincial superior courts had. While declaration of invalidity could not be granted by provincial superior court, fathers could obtain ultimate goal of reduction of child support.

Strickland v. Canada (Attorney General)

(Feb. 5, 2014, F.C.A., Blais C.J., Sharlow J.A., and Johanne Gauthier J.A., File No. A-199-13) Decision at 228 A.C.W.S. (3d) 705 was affirmed.  244 A.C.W.S. (3d) 341.

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