Action des nouvelles conjointes (Québec) v. Canada, 2003 FC 1360

Date : 20031118

Docket : T-1473-03

Citation: 2003 FC 1360

BETWEEN:

                             L'ACTION DES NOUVELLES CONJOINTES DU QUÉBEC

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY:

Introduction

[1]                 By a motion pursuant essentially to Rule 208 of the Federal Court Rules ,1998 ("the Rules"), the defendant is asking the Court to strike out the statement of claim filed by the plaintiff in the case at bar and that filed in case T-1474-03 by three other plaintiffs, on the ground that none of those plaintiffs has standing to act in the public interest within the meaning of the Supreme Court's judgment in Canadian Council of Churches v. Canada (M.E.I.), [1992] 1 S.C.R. 236 ("Council of Churches").^[1]

Factual background

[2]                 These reasons and the order accompanying them will apply mutatis mutandis to case T-1474-03, since the defendant filed the motion at bar both in the instant case and in case T-1474-03. The parties argued the defendant's motion with this understanding clearly in mind.

[3]                 In the instant case, T-1473-03, the plaintiff (from time to time hereinafter "the ANCQ") describes itself in its statement of claim and in an affidavit it filed in response to the motion at bar as follows:

The Plaintiff, L'Action des Nouvelles Conjointes du Québec, is a corporation registered under the laws of Quebec. The organization's objective is to rally and give assistance to couples formed by previously married spouses where in the formation of their new union they suffer inequities within the judicial system.

[4]                 In other words, the plaintiff includes and seeks to assist individuals who have suffered inequities in their divorce proceedings in the court handling divorces cases (hereinafter, for the sake of convenience, "the superior court") under the Divorce Act, R.S.C. 1985 (2d supp.), c. 3, as amended ("the Act").

[5]                 On the subject of the action, the ANCQ indicated the following in its statement of claim:

The claim made against you involves the Divorce Act, R.S.C. 1985, c. 3 ("Act") and the Child Support Guidelines ("Guidelines") enacted by the Governor General in Council pursuant to section 26.1 of the Act, as set out in the following pages.

[6]                 Section 26.1 of the Act reads as follows:

[7]                 The challenge to section 26.1 of the Act by the ANCQ and to the Guidelines laid down under that section includes a vast range of allegations of unconstitutionality which are difficult to summarize in a few words.

[8]                 Although they do not reflect all the angles or nuances contained in the statement of claim, I think paragraphs 5 to 7 and 35 of the ANCQ's statement of claim provide a sufficiently clear indication at this stage of the nature of the interests relied on by the plaintiff.^[2]

[9]                 These paragraphs read as follows:

III.            The Case

5.              The Plaintiff hereby challenges the constitutional validity of section 26.1 of the Act and the Guidelines. The Act and the Guidelines infringe the guarantee of equality in the Bill of Rights and Charter. The Act and the Guidelines are also beyond the jurisdiction of the Parliament of Canada under the Constitution Act, 1867. Furthermore, the Guidelines are arbitrary and not consistent with the Act or the common law of Canada.

IV.            Introduction

Statistically, custody and child support awards favour the mother

6.              In the Survey of Child Support Awards: Interim Analysis of Phase 2 Data presented to, and published by, the Department of Justice (by the Canadian Research Institute for Law and the Family), Her Majesty the Queen in Right of Canada (2001), a total of 14,067 custody cases in Canada were analyzed and it was determined that custody was allocated on the following basis:

a.              the mother (sole custody):       80.4%;

b.              the father (sole custody):         8.6%

c.              shared custody:                         5.3%

d.              split custody:                           5.0%

The father was the paying parent ("Paying Parent") in 93.6% of cases with a valid child support award, while the mother was the Paying Parent in 5.7% of cases. Information was not available or was inapplicable in 0.6% of cases with child support awards.

Guidelines are unlawful

7.              Current child support laws and regulations are deliberately or negligently skewed to maximize child support payments. This is in contrast to a genuine calculation and sharing of the costs of raising children. The Guidelines have resulted in a massive transfer of wealth; a transfer unrelated to the purpose of child support. Child support payments have become a new tax - a tax on being a father and divorced. This claim lays out the legal and constitutional reasons why the current child support system is unlawful.

. . . . .

XIV.         Conclusion

35.            The Guidelines and section 26.1 of the Act should be declared of no force or effect or, in the alternative, should be read down to limit any infringement of:

a.              property and equality rights in section 1(a) and (b) of the Bill of Rights;

b.              life, liberty and privacy rights in section 7 of the Charter;

c.              equality rights in sections 15 and 28 of the Charter;

d.              provincial jurisdiction over property and civil rights in a province set forth in section 92(13) of the Constitution Act, 1867;

e.              the jurisdiction of the House of Commons to impose a tax or impost; and,

f.              the common law right to make arrangements regarding one's children.

[10]            In case T-1474-03, the plaintiffs indicated the following on the face of the statement of claim:

The claim made against you involves the Best Interests Test under the Divorce Act, R.S.C. 1985, c. 3 ("Act") and is set out in the following pages.

[11]            Paragraphs 2 to 4, 6 and 7 of the statement of claim provide sufficient information, as follows, on the plaintiffs and the interests on which they rely in case T-1474-03:

II.             The Parties

2.              The Plaintiff, L'Après-Rupture, is a corporation registered under the laws of Quebec. The organization's mission is to defend and promote the rights of children, in maintaining strong and essential relationships with their biological parents and extended family, to develop and put in place mechanisms designed to maintain strong and affective relationships with their biological parents and extended families, to assist fathers and groups of fathers and parents in the promotion of fatherhood and the family, and to develop a social conscience regarding the negative effects on society and the family of the rupture of the conventional family.

3.              The Plaintiff, Fathers Are Capable Too: Parenting Association, also known as F.A.C.T., is a non-profit company registered under the laws of Ontario. The organization's objective is to provide support and counselling to non-custodial parents involved in the divorce or separation process, and to promote shared parenting.

4.              The Plaintiff, Legal Kids, is a non-profit company registered under the laws of Alberta. The organization's objective is to ensure children's legal rights are respected, maintained and protected during the divorce of their parents.

                                                                         . . . . .

III.            Introduction

Current system imbalanced

6.              There exists an imbalance in child custody laws and their implementation favouring the mother over the father in the name of the best interests of the child. This claim lays out the legal and constitutional reasons why the current system for determining child custody on family break-up cannot be constitutionally maintained.

IV.            The Case

7.              The fundamental freedoms and the principles of equality, privacy and parental responsibility embedded in the Charter, the Bill of Rights and the common law protect and preserve the custodial rights of parents, even after the dissolution of their marriage. The test ("Current Test") for determining questions of custody and access in the event of a divorce action or in any proceedings relating thereto set forth in sections 16(1), 16(2), 16(8) and 16(10) of the Act is inconsistent with the Charter and the Bill of Rights. Furthermore, common law principles require the courts to interpret the Act in a manner that does not unnecessarily undermine parental responsibilities.

Analysis

[12]            For the following reasons, the Court will concentrate on the ANCQ case at bar, namely T-1473-03. As mentioned earlier, the approach contained therein and the resulting order are applicable to T-1474-03, mutatis mutandis.

[13]            At the outset, it is admitted on all sides that the ANCQ, as a corporation, cannot be subject to an order for child support under section 26.1 of the Act. Accordingly, it has no direct interest in acting.

[14]            Consequently, the plaintiff has to have its public interest standing recognized ("standing").

[15]            I consider that this question concerning the plaintiff must be decided in accordance with the principles laid down by the Supreme Court in Council of Churches.

[16]            In that case the Canadian Council of Churches, an organization representing the interests of member churches, including the protection and resettlement of refugees, sought in the Federal Court and then the Supreme Court a declaration that several provisions amending the Immigration Act, 1976, S.C. 1976-77, c. 52, contravened the Canadian Charter of Rights and Freedoms ("the Charter") and the Canadian Bill of Rights, R.S.C. 1985, App. III. The amendments dealt with provisions on determining whether an applicant is a Convention refugee.

[17]            In Council of Churches, the Court, at 253, described the three points that should be taken into account in determining standing as follows:

It has been seen that when public interest standing is sought, consideration must be given to three aspects. First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?

(My emphasis.)

[18]            For the purposes of the instant motion the defendant conceded that the plaintiff's action allows it to meet the first two aspects of the test stated above, namely the existence of a serious issue and the fact that the plaintiff has a genuine interest.

[19]            However, as in Council of Churches inter alia, it is on the third aspect, the existence of another reasonable and effective way to bring the issue before the courts, that the parties disagree.

[20]            I think that in order to understand the comments which the Supreme Court makes with regard to this third aspect, at 254 to 256, we should go back to what it has to say at 248 et seq., on inter alia the undoubted advantages of a traditional approach to the courts, namely through cases involving individuals, so the courts can reach their decisions based on facts that have been clearly established, in order to ensure that judicial resources are not overextended. Indeed, the Supreme Court says the following in this connection in Council of Churches, at 248 et seq.:

The Question of Standing in Canada

       Courts in Canada like those in other common law jurisdictions traditionally dealt with individuals. For example, courts determine whether an individual is guilty of a crime; they determine rights as between individuals; they determine the rights of individuals in their relationships with the state in all its various manifestations. One great advantage of operating in the traditional mode is that the courts can reach their decisions based on facts that have been clearly established. It was by acting in this manner that the courts established the rule of law and provided a peaceful means of resolving disputes. Operating primarily, if not almost exclusively, in the traditional manner courts in most regions operate to capacity. Courts play an important role in our society. If they are to continue to do so care must be taken to ensure that judicial resources are not overextended. This is a factor that will always have to be placed in the balance when consideration is given to extending standing.

And at 251:

The standard set by this Court for public interest plaintiffs to receive standing also addresses the concern for the proper allocation of judicial resources. This is achieved by limiting the granting of status to situations in which no directly affected individual might be expected to initiate litigation.

(My emphasis.)

[21]            In a case soon after its judgment in Council of Churches, a majority of the Supreme Court again noted the importance of questioning Charter challenges when such challenges do not derive from cases involving the moving parties' particular factual situation. In Hy and Zel's Inc. v. Ontario (A.G.), [1993] 3 S.C.R. 675, Major J. said at 694:

More recently in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1093, this Court cautioned that "the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints." This mirrors the court's vigilance in ensuring that it hears the arguments of the parties most directly affected by a matter. In the absence of facts specific to the appellants, both the court's ability to ensure that it hears from those most directly affected and that Charter issues are decided in a proper factual context are compromised.

[22]            On the first and most fundamental purpose in granting standing, namely avoiding legislation being beyond the scope of judicial challenge, this is what the Supreme Court said in Council of Churches, at 252-253:

The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded. The decision whether to grant status is a discretionary one with all that that designation implies. Thus undeserving applications may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.

[23]            Returning now to the specific analysis undertaken by the Court for the third aspect of the test which it adopts, namely the existence of a reasonable and effective way to bring the issue before the courts, the Supreme Court said the following at 254-255:

It is this third issue that gives rise to the real difficulty in this case. The challenged legislation is regulatory in nature and directly affects all refugee claimants in this country. Each one of them has standing to initiate a constitutional challenge to secure his or her own rights under the Charter. The applicant Council recognizes the possibility that such actions could be brought but argues that the disadvantages which refugees face as a group preclude their effective use of access to the court. I cannot accept that submission. Since the institution of this action by the Council, a great many refugee claimants have, pursuant to the provisions of the statute, appealed administrative decisions which affected them. The respondents have advised that nearly 33,000 claims for refugee status were submitted for the first 15 months following the enactment of the legislation. In 1990, some 3,000 individuals initiated claims every month. The Federal Court of Appeal has a wide experience in this field. MacGuigan J.A., writing for the Court, took judicial notice of the fact that refugee claimants were bringing forward claims akin to those brought by the Council on a daily basis. I accept without hesitation this observation. It is clear therefore that many refugee claimants can and have appealed administrative decisions under the statute. These actions have frequently been before the courts. Each case presented a clear concrete factual background upon which the decision of the court could be based.

. . . . .

From the material presented, it is clear that individual claimants for refugee status, who have every right to challenge the legislation, have in fact done so. There are, therefore, other reasonable methods of bringing the matter before the Court. On this ground the applicant Council must fail. I would hasten to add that this should not be interpreted as a mechanistic application of a technical requirement. Rather it must be remembered that the basic purpose for allowing public interest standing is to ensure that legislation is not immunized from challenge. Here there is no such immunization as plaintiff refugee claimants are challenging the legislation. Thus the very rationale for the public interest litigation party disappears. The Council must, therefore, be denied standing on each of the counts of the statement of claims. This is sufficient to dispose of the appeal.

(My emphasis.)

[24]            These observations by the Court can readily be adapted to the situation at issue here. As with the situation of any refugee status claimant in Council of Churches, any person who has to pay alimony for the benefit of a child has standing to launch a challenge similar to that of the plaintiff.

[25]            In its written submissions and in argument the plaintiff maintained that it is illusory, even unrealistic, to think that a constitutional challenge such as that made by the plaintiff could be made in litigation between individuals. The said submissions further maintained that individual parties to a divorce are and must remain preoccupied by more basic matters, such as actual custody of children and even the payment of child support. In the plaintiff's submission, no responsible parent would want to see a systemic challenge such as that made by the plaintiff form part of a private dispute.

[26]            However, these allegations by the plaintiff are not validly supported in evidence by specific allegations clearly originating with one or more persons who can testify to the difficulties mentioned by the plaintiff.

[27]            In support of its challenge to the motion at bar, the plaintiff filed a short affidavit from its president in which only one paragraph, paragraph 6, appears to be relevant. That paragraph reads as follows :

6.              The passage of time will not represent a difficulty or hindrance to the Plaintiff as it might if the Plaintiff were a litigant in a divorce action involving children, nor are there any children involved in this action who would be detrimentally impacted by the passage of time.

[28]            As can be seen, this paragraph simply addresses the fact that the duration of an action would not have the same impact on the plaintiff as it would on an individual or children involved in a divorce.

[29]            First, it can be seen that this allegation in the plaintiff's affidavit does not corroborate or support the allegation that in actual fact, and in practice, it is inconceivable for a systemic challenge to form part of a private action.

[30]            Second, although we know that it is the plaintiff's president who signed the affidavit, we know nothing about the latter's personal situation or experience that allows her to speak with authority about the effect of passage of time on an individual or on children.

[31]            Additionally, the defendant raised a series of judgments in which divorce litigation has in fact raised Charter challenges to provisions of the Act (see, for example, Young v. Young, [1993] 4 S.C.R. 3; P.(D.) v. S.(C.), [1993] 4 S.C.R. 141; S.-L.(L.) v. S.(C) (1997), 154 D.L.R. (4th) 1). In many of these situations the challenges led the Attorney General of Canada or certain of his provincial counterparts to intervene and to contribute to the discussion. This presence of institutional players in a private action is thus not without precedent and it cannot be said that it is contrary to the interests of the child or of justice.

[32]            Accordingly, it can be concluded, as the Supreme Court did in Council of Churches on the cases of refugee status claimants, that the reality is that individuals affected by aspects of the Act have challenged it under the Charter based on a specific factual background on which the Court, here the Superior Court or its equivalent, could base its judgment.

[33]            As the defendant noted in paragraphs 23 and 24 of her written submissions in support of the motion at bar:

23.            Put simply, child support payers themselves are the parties with a direct interest in matters relating to child support orders and they can effectively provide the factual context necessary to answer the constitutional challenge raised by the plaintiff.

24.            Furthermore, the effective way to address these issues raised in the Plaintiff's statement of claim should be before the court within a divorce proceeding. To do otherwise, would deprive the court from the fundamental and essential factual context emanating from the child support recipient and further prejudice their interests.

[34]            It must follow, therefore, that the plaintiff cannot be granted standing, since it has not disposed of the fact that there is at least one other reasonable and effective way of submitting the plaintiff's argument, namely in a divorce action between individual litigants in the Superior Court.

[35]            This conclusion must accordingly lead the Court to allow the defendant's motion, with a range of costs for both cases T-1473-03 and T-1474-03. Equally, in view of this conclusion, the Court clearly cannot allow the plaintiff's application and permit one of its members to act as a plaintiff in this Court. Our conclusion on the aspect of the test set forth in Council of Churches makes this Court an improper forum. The correct forum is the Superior Court exercising its jurisdiction over divorce.

[36]            Further, as an alternative position, probably in order to get around the test applied by the Supreme Court in Council of Churches, the plaintiff sought to rely on the Supreme Court's judgment in Canadian Bar Association, British Columbia Branch v. British Columbia, [1993] B.C.J. No. 407 ("CBA").

[37]            In that case the Canadian Bar Association and the British Columbia Law Society sought to challenge the constitutional validity of a provincial Act imposing a 6% tax on all legal services. The British Columbia Attorney General challenged the standing of these two bodies.

[38]            Although recognizing that Council of Churches is the leading case on the question of standing, Lysyk J. of the British Columbia Supreme Court preferred to follow another Supreme Court judgment handed down in the weeks preceding Council of Churches, namely Conseil du Patronat du Québec v. Quebec (Attorney General), [1991] 3 S.C.R. 685 ("Conseil du Patronat").

[39]            I do not intend to follow the plaintiff in that direction.

[40]            First, in CBA the Court recognized that the Supreme Court's judgment in Conseil du Patronat is nowhere mentioned by that Court in Council of Churches and that Conseil du Patronat appears to be an isolated decision. I agree with that caveat.

[41]            It appears that like the extent of membership in Conseil du Patronat (70% of the labour force in the province of Quebec), the British Columbia Supreme Court was greatly impressed in CBA by the fact that the Canadian Bar Association and the Law Society represented all lawyers in this western Canadian province. The Court accordingly appeared ready to let the direct interest of this vast base be handled by the entities seeking to have their standing confirmed. Lysyk J. said the following:

In Council of Churches, the corporation seeking standing represented the interests of a group of member churches none of which, of course, were actually or potentially directly affected as applicants for refugee status. In contrast, many of the employers represented by the Conseil du Patronat were directly affected, at least potentially. Here, the Bar Association and the Law Society claim as members all barristers and solicitors engaged in the private practice of law in British Columbia, each of whom is or can expect to be directly affected by the impugned legislation.

Like the Conseil du Patronat, the Bar Association and the Law Society are non-profit organizations whose function is to represent the interests of their members. The Conseil du Patronat decision does not appear to turn on a point of procedural law distinct to Quebec. On the contrary, the analysis undertaken clearly turns on decisions of the Supreme Court of Canada establishing the general principles which govern public interest standing to challenge the constitutional validity of legislation, including the test as formulated in Borowski.

There is room for debate concerning the scope of the principle upon which the Conseil du Patronat decision rests. However, to the extent that the Conseil drew upon the interest of its members, the claims to standing of the Bar Association and the Law Society in the present proceeding would seem to be at least as compelling. The Conseil represents many but not all employers in Quebec. The Bar Association and the Law Society represent all practising lawyers in British Columbia.

I conclude that the Conseil du Patronat decision is not distinguishable in principle and that it governs the present proceeding. Accordingly, the petitioners will be accorded standing in this constitutional challenge.

(My emphasis.)

[42]            In the case at bar, although it is conceivable for the ANCQ to represent individuals having a direct interest in the questions raised, there is absolutely nothing specific in the evidence about the extent of ANCQ membership by those same individuals. Are we talking about a vast base here, as there was in Conseil du Patronat or CBA? We simply do not know. The affidavit signed by the plaintiff in opposition to the instant motion and the statement of claim filed by the latter do not enable the Court to draw an acceptable parallel between the case at bar and those cases seeking to distinguish the Supreme Court's judgment in Council of Churches.

[43]            Finally, the plaintiff drew the Court's attention to a vast series of cases in which courts have agreed to grant standing to organizations or corporations (see paragraph 16 of the plaintiff's written submissions). However, it appears from these cases as a whole that they occurred in the field of environmental law, in which ultimately it could be shown that no particular individual had a more specific interest to prosecute than any other. The situation is different here.

[44]            As discussed in court, in view of my conclusion that the plaintiff lacks standing, I do not have to consider the plaintiff's statement of claim to determine whether it is clear and obvious that it discloses a reasonable cause of action, in whole or in part, under Rule 221.

[45]            An order will be made accordingly.

Montréal, Quebec,

November 18, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

             FEDERAL COURT

Date : 20031118

Docket : T-1473-03

Between:

L'ACTION DES NOUVELLES CONJOINTES DU QUÉBEC

                                                  Plaintiff

                             and

    HER MAJESTY THE QUEEN

                                              Defendant

        REASONS FOR ORDER

                                                    FEDERAL COURT

                                             SOLICITORS OF RECORD

FILE:

STYLE OF CAUSE:

T-1473-03

L'ACTION DES NOUVELLES CONJOINTES DU QUÉBEC

                                                                                     Plaintiff

and

HER MAJESTY THE QUEEN

                                                                                 Defendant

PLACE OF HEARING:Montréal, Quebec

DATE OF HEARING:October 6, 2003

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:November 18, 2003

APPEARANCES:

SOLICITORS OF RECORD: