Supreme Court



Provincial superior courts have jurisdiction to address validity of child support guidelines where doing so is necessary step in resolving case otherwise properly before them

Appellants brought judicial review application in federal court seeking declaration that federal child support guidelines unlawful as not authorized by s. 26.1(2) of Divorce Act. Application judge held that given minor role Federal Court plays in issues under act and breadth of jurisdiction and expertise of provincial superior courts in matters related to divorce and child support, Federal Court was not appropriate forum in which to address validity of guidelines. Federal Court upheld application judge’s decision and appellants’ further appeal dismissed. Provincial superior courts can determine whether guidelines ultra vires and can decline to apply them if doing so is necessary step in resolving matters before them. Judicial review is discretionary; even if applicant makes out case for review on merits, reviewing court retains overriding discretion to refuse relief. Declarations of rights are similarly discretionary. Federal Court judges’ discretion in determining whether judicial review should be undertaken entitled to deference. One of discretionary grounds for refusing to undertake judicial review is that there is adequate alternative. Court should consider suitability and appropriateness of judicial review. Federal Court has discretion to rule on legality of guidelines but it declined to exercise that discretion. Alternative does not need to provide identical procedures or relief to be adequate. Determination of whether guidelines are based, as required to be, on s. 26.1(2) of act, will engage family law expertise in relation to, inter alia, nature and extent of obligation to maintain children and how relative abilities of parents to do so should be assessed, an area of law entrusted to provincial superior courts. It would be curious if legality of central aspect of regime were determined by federal courts which have virtually no jurisdiction with respect to family law matters. In addition, ruling in Federal Court would not be binding on provincial superior courts. Judicial review proceedings exclude direct adversarial participation; adjudicating issue in context of act or child support proceedings would ensure full participation of parties. Judicial review in Federal Court is manifestly inappropriate; provincial superior courts have jurisdiction to address validity of guidelines where doing so is necessary step in resolving case otherwise properly before them.

Strickland v. Canada (Attorney General) (Jul. 9, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35808) Decision at 244 A.C.W.S. (3d) 341 was affirmed. 254 A.C.W.S. (3d) 838.

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