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Digest of the Week — Are the Child Support Guidelines Ultra Vires?

Strickland v. Canada (Attorney General) |
2015 CarswellNat 2457 |
Supreme Court of Canada

Administrative law | Prerequisites to judicial review | Jurisdiction of court to review | Exchequer Court and Federal Court | "Federal board, commission or other tribunal" | Concurrent jurisdiction with provincial superior courts

Applicants were payors of child support, as well as ex-wife and children of one payor — Applicants brought application for judicial review in Federal Court (FC) seeking declaration that Federal Child Support Guidelines were unlawful as they are not authorized by s. 26(1) of Divorce Act — Application judge held that FC was not appropriate forum to address validity of Guidelines as provincial superior courts had jurisdiction and expertise in such matters, and Federal Court of Appeal upheld that decision — Applicants appealed — Appeal dismissed — FC has exclusive original jurisdiction to grant declaratory relief against any federal board, commission or other tribunal — Amendments in 1990 to Federal Courts Act made FC's jurisdiction over claims against federal Crown concurrent with that of provincial superior courts rather than exclusive — As such, and according to jurisprudence, in family law proceedings properly before them, provincial superior courts can decide whether Guidelines are ultra vires — FC based its discretionary decision to deny judicial review on expertise of provincial superior courts in family law — Applicants' position that they were entitled to ruling on legality of Guidelines through judicial review was at odds with discretionary nature of judicial review — Applicants' position that alternative procedure was not adequate since it did not provide identical procedures or relief was not accepted since judicial review proceeding was inconsistent with parliamentary decisions about where important family law decisions were to be determined — Applicants' argument that FC ruling would be more efficient than multiple provincial proceedings overlooked fact that FC ruling on this issue would not be binding on any provincial superior court — FC did not make any reviewable error in exercising its discretion not to entertain the application for judicial review.

Family law | Support | Child support under federal and provincial guidelines | Practice and procedure | Jurisdiction of courts

Applicants were payors of child support, as well as ex-wife and children of one payor — Applicants brought application for judicial review in Federal Court (FC) seeking declaration that Federal Child Support Guidelines were unlawful as they are not authorized by s. 26(1) of Divorce Act — Application judge held that FC was not appropriate forum to address validity of Guidelines as provincial superior courts had jurisdiction and expertise in such matters, and Federal Court of Appeal upheld that decision — Applicants appealed — Appeal dismissed — FC has exclusive original jurisdiction to grant declaratory relief against any federal board, commission or other tribunal — Amendments in 1990 to Federal Courts Act made FC's jurisdiction over claims against federal Crown concurrent with that of provincial superior courts rather than exclusive — As such, and according to jurisprudence, in family law proceedings properly before them, provincial superior courts can decide whether Guidelines are ultra vires — FC based its discretionary decision to deny judicial review on expertise of provincial superior courts in family law — Applicants' position that they were entitled to ruling on legality of Guidelines through judicial review was at odds with discretionary nature of judicial review — Applicants' position that alternative procedure was not adequate since it did not provide identical procedures or relief was not accepted since judicial review proceeding was inconsistent with parliamentary decisions about where important family law decisions were to be determined — Applicants' argument that FC ruling would be more efficient than multiple provincial proceedings overlooked fact that FC ruling on this issue would not be binding on any provincial superior court — FC did not make any reviewable error in exercising its discretion not to
entertain the application for judicial review.


The applicants were three payors of child support, as well as the ex-wife and two children of one of the payors. The applicants brought an application for judicial review in Federal Court (FC) seeking a declaration that the Federal Child Support Guidelines were unlawful as they are not authorized by s. 26(1) of the Divorce Act. They claimed that the Guidelines were not based on the "relative abilities to contribute" of both spouses, and that they do not reasonably calculate the amounts required to "maintain the children". The application judge held that the FC was not the appropriate forum to address the validity of the Guidelines, given the breadth of jurisdiction and expertise of the provincial superior courts in such matters. The FC exercised its well-established discretion to decline to undertake judicial review where another, more suitable remedy was available. The Federal Court of Appeal (FCA) upheld this decision. The applicants appealed.

Held: The appeal was dismissed.

Per Cromwell J. (McLachlin C.J.C., Rothstein, Moldaver, Karakatsanis, Gascon and Côté JJ. concurring): Pursuant to s. 18(1)(a) of the Federal Courts Act, the FC has exclusive original jurisdiction to grant declaratory relief against any federal board, commission or other tribunal. Amendments in 1990 to the Federal Courts Act made the FC's jurisdiction over claims against the federal Crown concurrent with that of provincial superior courts rather than exclusive. As such, and according to the jurisprudence, in family law proceedings properly before them, the provincial superior courts can decide whether the Guidelines made by the Governor in Council are ultra vires.

The FC based its discretionary decision to deny judicial review on the expertise of the provincial superior courts in family law. The FCA added that a finding that the Guidelines were ultra vires would have other and uncertain consequences regarding family law matters outside the Divorce Act to which the Guidelines apply, including provincial legislation and practice. The applicants claimed that they were seeking a purely public law remedy that could only be obtained in the FC. The applicants' position that they were entitled to a ruling on the legality of the Guidelines through judicial review was at odds with the discretionary nature of judicial review. The FC had a discretion to consider their application for judicial review, and chose not to exercise that discretion. The applicants' position that the alternative procedure was not adequate since it did not provide identical procedures or relief was not accepted since the judicial review proceeding was inconsistent with parliamentary intent about where important family law decisions were to be determined. Parliament had entrusted virtually all of family law to the provincial superior courts, so it was inappropriate for the legality of a central aspect of family law to be decided by federal courts who had almost no jurisdiction in this area. The applicants' argument that a FC ruling would be more efficient than multiple provincial proceedings overlooked the fact that a FC ruling on this issue would not be binding on any provincial superior court. The FC did not make any reviewable error in exercising its discretion not to entertain the application for judicial review.

Per Abella and Wagner JJ. (concurring): This case should not be seen as endorsing the assumption that the FC has exclusive jurisdiction to declare regulations invalid. The Supreme Court of Canada has said that the provincial superior courts have jurisdiction to declare the federal laws that they administer invalid, and that any derogation from this jurisdiction requires clear and explicit statutory wording. The FC was created to remove the jurisdiction to supervise federal administrative tribunals from the provincial superior courts, but not strip them of the jurisdiction to determine the vires of the federal regulations they apply.
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