Docket:
A-199-13
Citation:
2014 FCA 33
CORAM:
BLAIS
C.J.
SHARLOW
J.A.
GAUTHIER
J.A.
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Docket:
A-199-13
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BETWEEN:
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ROBERT T. STRICKLAND, GEORGE CONNON, ROLAND AUER, IWONA
AUER-GRZESIAK, MARK AUER, AND VLADIMIR AUER BY THIS LITIGATION
REPRESENTATIVE ROLAND AUER
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Appellants
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Calgary, Alberta, on February 5, 2014).
GAUTHIER J.A.
[1]
This is an appeal from the order of Justice Gleason of the Federal Court
dismissing the appellants’ application for judicial review. In her reasons (2013
FC 475), the judge found i) that George Connon, Iwona Auer-Grzesiak, Mark Auer
and Vladimir Auer lacked standing to bring the application and did not meet the
test for public interest standing, ii) that the application of Robert T.
Strickland was an impermissible collateral attack and an abuse of process, and
iii) that while Roland Auer had standing to bring the application, this was a
case where the Court should decline to exercise its jurisdiction to hear the
application mainly because the issues raised would be more appropriately determined
by the provincial superior courts, which have virtually exclusive jurisdiction
over divorce, corollary relief (including child support) and variation
proceedings under the Divorce Act, R.S.C. 1985, c. 3 (2nd Suppl.) (Divorce
Act).
[2]
In their application, Robert T. Strickland, George Connon, Roland Auer,
Iwona Auer-Grzesiak, Mark Auer and Vladimir Auer (the appellants) allege that
the Federal Child Support Guidelines, SOR/97-175 (the Guidelines)
contradict the provisions of the Divorce Act, under which they were
enacted. They seek to have the Federal Court declare that the Guidelines are
ultra vires the Divorce Act. The appellants claim that the
Guidelines do not reflect the requirements set out in subsection 26.1(2) of the
Divorce Act and over compensate former spouses where there is a joint
custody arrangement and the children reside part time with the payor parent.
[3]
The Attorney General of Canada (AGC) brought a motion seeking to have
the application dismissed because of a lack of standing, because the
application constituted an impermissible collateral attack on a child support
agreement or otherwise an abuse of process, or in the alternative, because the
Court should exercise its discretion to decline to hear the application.
[4]
To understand the judge’s conclusions and the arguments put forth before
us, it is worth noting the following in respect of each individual appellant (see
paragraphs 5 to 8 and 32 of the judge’s reasons):
- Robert T. Strickland: At the time
the application was filed, he was a party to a divorce action. In the
context of this action, he entered into an interim child support agreement
through court mandated mediation.
- George Connon: He was separated
from his wife but had not yet started divorce proceedings. He voluntarily
pays child support calculated in accordance with the Guidelines.
- Roland Auer: Three of Mr. Auer’s
marriages are implicated in this proceeding. He and his second wife (Aysel
Auer) have one child for which Mr. Auer pays child support. The amount of
such support was initially calculated with reference to the Guidelines but
it has since been varied twice by the Alberta Court of Queen’s Bench. The
latest order is “made on a without prejudice basis so that if [Roland
Auer] is successful with his federal challenge to the Federal Child Support
Guidelines, then [the amount to be paid] shall be reviewable back to the
date of this Order”.
- Iwona Auer-Grzesiak: She is the
former first wife of Roland Auer. They have two children. There is no
evidence of any court order for child support for these children.
- Mark Auer: He is one of the children
of Roland Auer and Iwona Auer-Grzesiack, two of the above-mentioned
appellants. There is no evidence of any order for child support for this
appellant.
- Vladimir Auer: A child of Roland
Auer’s third marriage. He lives with his parents, who are neither
separated nor divorced.
[5]
Robert T. Strickland, George Connon and Roland Auer – the payors –
ultimately seek to have a downward variation of the child support they are
paying. The other three appellants argue that they are directly affected by any
obligation to pay support pursuant to the Guidelines.
[6]
The appellants essentially contest all of the findings of the judge
where she disagrees with their position.
[7]
In our view, the judge did not err in law when she concluded that the
provincial superior courts have jurisdiction to determine the vires of
the Guidelines in the context of proceedings for which they have jurisdiction
under the Divorce Act and to decline to apply them if found to be ultra-vires.
We agree with her, essentially for the reasons she gave.
[8]
We agree with the appellants that the judge erred in principle when she
described and applied the third factor to be considered to determine public
interest standing. As explained in Canada (Attorney General) v. Downtown
Eastside Sex Workers United Against Violence Society, 2012 SCC 45,
[2012] 2 S.C.R. 524 (Downtown Eastside) at paragraph 44, the judge had
to consider whether the application was in all of the circumstances, and in
light of a number of considerations described in the said decision, “a
reasonable and effective mean to bring the challenge to court”.
[9]
That is not to say that applying the appropriate flexible and purposive
approach mandated in Downtown Eastside would have led to a different
conclusion. In our view, it is not necessary to do this exercise for in the
end, this appeal should be determined on the question of whether or not the
judge erred in declining to exercise her jurisdiction. For that purpose, we are
prepared to assume that all appellants could have some standing, and we will
not address the subsidiary issue regarding collateral attack and abuse of
process. It is clear that even if all the appellants had been granted public
interest standing, the judge would not have exercised her discretion
differently.
[10]
In reaching her conclusion, the judge was entitled to consider the fact
that provincial superior courts clearly have more expertise than the Federal
Court in child support matters. As a matter of fact, they deal extensively with
such matters. Although the Federal Court technically also has a limited
jurisdiction over these matters where both parties to a marriage commence an
action on the same day in different provincial superior courts and neither is
discontinued (see subsections 3(3), 4(3) of the Divorce Act), such
jurisdiction has rarely been exercised and the Federal Court has no expertise
in matters of family law.
[11]
We do not read the judge’s reasons as dependent on the existence of an
actual parallel litigation as in the case of Roland Auer. The case law that she
relies on at paragraphs 59 and 60 (Reza v. Canada, [1994] 2 S.C.R. 394
and L’Action des nouvelles conjointes du Québec v. Canada, 2004 FC 797)
did not involve any such parallel litigation. Her conclusion would therefore
apply to all the appellants regardless of whether or not they were engaged in
other proceedings.
[12]
In any event, we have reached the conclusion that the Federal Court’s discretion
to not hear this matter should indeed be exercised in respect of this
application for a number of reasons.
[13]
First, as noted by the judge, the vires of the Guidelines should
be determined by a court that has developed the particular expertise to
properly assess the arguments in their factual context. This is particularly
important when one considers the nature of the arguments set out in paragraphs
14 and 15 of the application and the general allegation at paragraph 16 that
the Guidelines are unreasonable and manifestly unjust, which involves looking
at the impact of the Guidelines and the child support calculation formula on
spouses and children in practice. Practical experience is relevant also when
one considers that the Guidelines provide significant discretion to the
provincial superior courts to depart from the statutory formula. According to
the Appellants, such courts in fact rarely exercise that discretion. It would
be difficult for the Federal Court to assess the validity of that contention.
[14]
Second, it is acknowledged by the Appellants that the reach of the
Guidelines extends to family law matters outside the Divorce Act by
virtue of provincial legislation and practice. In respect of such matters, the
consequences of invalidating the Guidelines would be uncertain.
[15]
Third, it would be more appropriate to adjudicate these issues in the
context of a divorce or corollary relief proceedings because it would ensure
full and proper participation of the spouse seeking child support. Such parties
are directly affected by the position taken by the appellants and are not
present in the context of the application filed with the Federal Court.
[16]
Fourth, the appellants emphasized the importance of the issue they
raised. It is thus likely that any first instance decision would be brought to
a provincial court of appeal and perhaps to the Supreme Court of Canada. These
courts would significantly benefit from the practical expertise that provincial
superior courts have with such matters and from the additional arguments
provided by the spouse seeking support as well as those of the AGC if he chose
to intervene.
[17]
We have been mindful of the appellants’ argument that the remedy they
seek – a declaration of invalidity and an order quashing the guidelines – could
not be granted by a provincial superior court. However, as stated by Sharlow
J.A. in Froom v. Canada (Minister of Justice), 2004 FCA 352 at paragraph
12:
It is well established that the Federal Court has the
discretion to decline to exercise its judicial review jurisdiction if the
applicant has available an adequate alternative remedy: Fast v. Canada (Minister of Citizenship and Immigration) (2001), 288 N.R. 8, (2001) 41 Admin.
L.R. (3d) 200 (F.C.A.); Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3.
In considering whether to decline jurisdiction, the test is whether the
alternative remedy is adequate, not whether it is perfect.
[18]
It is in fact difficult to see why the appellants would not be able to
obtain the reduction of their child support obligations under the Guidelines if
their argument were to succeed before a provincial superior court. Simply
because the appellants cannot obtain a formal declaration of invalidity does
not affect their ability to achieve their ultimate goal. In addition, in the
event that a provincial court of appeal or the Supreme Court of Canada ruled in
the appellants’ favour, the appellants would in practice obtain, if they
succeeded with their argument, the relief they are seeking without the need for
a formal declaration. Thus, although the prospect of a single proceeding in the
Federal Court may be a factor that weighs in favour of the Federal Court
hearing this application, it is not enough to outweigh the question of
expertise, the potential implication for provincial law and practice and the
fact that a more complete adversarial debate would result from having this
matter heard in the context of proceedings under the Divorce Act.
[19]
Finally, regarding the appellants’ argument that provincial superior
courts have historically been reluctant to grant standing to litigants who wish
to contest the vires of the Guidelines, it has not been established to
our satisfaction that this was indeed so and in any event, even if this was so in
the past, these courts would now have to address the issue of standing within
the framework set out in Downtown Eastside.
[20]
In light of the foregoing, the appeal will be dismissed with costs.
"Johanne Gauthier"
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