Auer v Auer, 2021 ABQB 370

Court of Queen’s Bench of Alberta Citation: Auer v Auer, 2021 ABQB 370 Date: 20210511 Docket: 4803 156019 Registry: Edmonton Between: Roland Nikolaus Auer Applicant - and - Aysel Igorevna Auer Respondent - and - Attorney General of Canada Intervenor _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice T.G. Rothwell _______________________________________________________

Table of Contents I. Introduction . 3 II. Issue . 3 III. Standard of Review .. 3 IV. Relevant Law .. 5 V. Evidence / Background to Promulgation of the Guidelines . 6 Parties’ Evidence . 6 Purpose and Context 9

Section 26.1(2) and The Limiting Principles . 9 VI. Position of the Parties . 12 Mr. Auer . 12 AGC .. 12 VII. Analysis . 13 Are the Guidelines Ultra Vires the Divorce Act? . 13

Section 26.1(1) of the Divorce Act 14

Section 26.1(2) of the Divorce Act 15 Relative Ability of Each Spouse . 15 Guidelines are More Than the Presumptive s 3 Table Amounts . 18 Costs of Reasonably Maintaining Children . 19 Committee’s Recommendation . 19 Mr. Auer’s Expert Reports . 19 Mathematical Analysis . 21

Section 7 Double Dipping . 22 Note 5 of

Schedule 1 in the Guidelines . 23 Other Judicial Consideration of the Guidelines . 24 Transparency . 25 Conclusion . 25 VIII. Disposition . 25 I. Introduction [ 1 ] The Applicant/Plaintiff, Roland Auer [Mr. Auer], challenges the vires of the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ] on the basis that the Governor-in-Council [GIC] exceeded its authority under the Divorce Act , RSC 1985, c 3 (2 nd Supp ) [ Divorce Act ] when it promulgated the Guidelines . [ 2 ] The Defendant, Aysel Auer [Ms. Auer], married Mr. Auer in 2004 and they had one child together in 2005. They divorced in 2008. Mr.

Auer has paid spousal and child support to Ms. Auer. Mr. Auer and Ms. Auer both have applications before this Court dealing with ongoing child and spousal support issues. Those applications were heard by Sulyma J. of this Court on September 15, 2020 and are subject to this vires challenge being decided. Ms. Auer takes no position on the vires application and did not participate in this

application. The Attorney General of Canada [AGC] is an Intervenor in this matter and was granted that status by Gates J: see Auer vAuer, 2018 ABQB 510. The AGC was granted broad rights, including the right to appeal an adverse ruling; and as such is, in essence,the Respondent in this matter. [3] Mr. Auer initially commenced his challenge to the vires of the Guidelines in the Federal Court of Canada. The Federal Courtof Canada declined to hear Mr.

Auer’s judicial review and the matter was ultimately appealed to the Supreme Court of Canada and isreported as: Strickland v Canada (Attorney General), 2015 SCC 37 [Strickland]. The Supreme Court of Canada held that a provincialsuperior court has jurisdiction to determine the vires of a regulation passed by the GIC when it arises in a matter that is properly beforeit: Strickland at para 9. [4] When the Federal Court declined to hear Mr. Auer’s judicial review, he filed an application with this Court seeking a similarremedy.

That application was adjourned pending the final outcome in Strickland. [5] The Guidelines are regulations passed pursuant to the Divorce Act and they are used by courts across Canada on a daily basisto determine child support obligations of parents who are or have been married. Section 26(1) of the Divorce Act provides generalregulation making authority for the GIC and s. 26.1(1) and (2) provide specific regulation making authority allowing the GIC toestablish Guidelines respecting orders for child support.

The Guidelines came into force on May 1, 1997 and contain 27 sections and 3Schedules including the tables that set presumptive child support amounts. I. Issue [6] The issue in this application is whether or not the Guidelines are ultra vires the Divorce Act? II. Standard of Review [7] Vires review is a form of judicial review. [8] In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the Supreme Court of Canadaclearly establishes reasonableness as the default presumptive standard of review.

According to the Court (at para 17), The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated thatit intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicablestandard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrativedecision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision.

Thesecond situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard ofcorrectness be applied.

This will be the case for certain categories of questions, namely constitutional questions, general questions of lawof central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or moreadministrative bodies. [9] Both parties, based on Vavilov, submit that the applicable standard of review is reasonableness. [10] Significantly, in the present case the GIC was exercising a legislative power when it enacted the Guidelines. The GIC canalso act in an adjudicative manner: Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40.

The GIC’s legislativedecisions are not immune from judicial review: Thorne’s Hardware Ltd v The Queen, 1983 SCR 106 at 111. [11] I agree that reasonableness is the appropriate standard and that none of the exceptions articulated in Vavilov apply. [12] However, while the parties agree that the standard of review is reasonableness, they part ways on the nature of thereasonableness review that this matter requires. [13] A vires review while robust is also tempered by the legislative nature of the decision.

Counsel will often use the analogy ofpeeling back the layers of an onion when encouraging a court to consider an issue. In a vires judicial review, the peeling occurs with thesame care as an adjudicative decision; however, there are generally less layers to peel.

Thus, application of the reasonableness standardin the context of a review for vires of a delegated legislation is different because there are no formal reasons issued by the administrativeauthority. [14] In Vavilov at para 137, the Court said: [137] Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can bechallenging in cases in which formal reasons have not been provided.

This will often occur where the decision-making process does noteasily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders adecision by holding a vote: see, e.g., [Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2; Green v Law Society of Manitoba,2017 SCC 20; Law Society of British Columbia v Trinity Western University, 2018 SCC 32]. However, even in such circumstances, thereasoning process that underlies the decision will not usually be opaque.

It is important to recall that a reviewing court must look to therecord as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: [Baker vCanada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817], at para. 44. For example, as McLachlinC.J. noted in Catalyst, “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations, and the statementsof policy that give rise to the bylaw”: para. 29.

In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clearto everyone,” they had also been laid out in a five-year plan: para. 33. Conversely, even without reasons, it is possible for the record andthe context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in[Roncarelli v Duplessis, (SCC), [1959] SCR 121].

[ Emphasis added ]. [ 15 ] It is worthy of note that in Vavilov at para 66 , the Supreme Court endorsed West Fraser Mills Ltd v British Columbia , 2018 SCC 22 [ West Fraser Mills ], which involved a vires challenge to regulations passed by the Workers Compensation Board, pursuant to the BC Workers Compensation Act , RSBC 1996, c 492.

Further, the Court endorsed Katz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 , which similarly considered a challenge to regulations promulgated by Ontario’s Lieutenant Governor in Council under Ontario’s pharmaceutical regulations that were aimed at improving the affordability of generic drugs: Vavilov at para 111 . [ 16 ] In Katz Group at paras 24-28, the Supreme Court enunciated the following principles regarding a vires challenge: • Regulations are presumed valid. • The onus of establishing invalidity rests with the challenger. • An interpretative approach that favours validity is favoured when possible. • The inquiry does not involve assessing the policy merits of the regulation to determine whether they are “necessary, wise or effective in practice.” • The motives for promulgation are irrelevant. • The regulations must be “irrelevant,” “extraneous” or “completely unrelated” to the statutory purpose in order to be struck down. [ 17 ] Following a careful review of the guidance contained in Vavilov , I conclude that the approach to vires review as outlined in West Fraser Mills , Katz and Catalyst remains operative and applicable.

III. Relevant Law

Section 26.1(1) and (2) of the Divorce Act read as follows:

(1) The Governor in Council may establish guidelines respecting orders for child support, including, but without limiting the generality of the foregoing, guidelines (

a) respecting the way in which the amount of an order for child support is to be determined; (

b) respecting the circumstances in which discretion may be exercised in the making of an order for child support; (

c) authorizing a court to require that the amount payable under an order for child support be paid in periodic payments, in a lump sum or in a lump sum and periodic payments; (

d) authorizing a court to require that the amount payable under an order for child support be paid or secured, or paid and secured, in the manner specified in the order; (

e) respecting the circumstances that give rise to the making of a variation order in respect of a child support order; (

f) respecting the determination of income for the purposes of the application of the guidelines; (

g) authorizing a court to impute income for the purposes of the application of the guidelines; and (

h) respecting the production of information relevant to an order for child support and providing for sanctions and other consequences when that information is not provided.

(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. IV. Evidence / Background to Promulgation of the Guidelines Parties’ Evidence [ 18 ] Mr. Auer filed a number of affidavits in support of his judicial review. I note the following affidavits that were primarily relied upon during submissions:

a) Affidavit of Professor C. Sarlo, University of Nipissing – 75-page report with 16 exhibits, curriculum vitae, 3 attachments – totalling approximately 1400 pages of material.

b) Update Affidavit from Professor C. Sarlo – approximately 5 pages, plus updated curriculum vitae.

c) Rebuttal Report of Professor C, Sarlo responding to Professor Thompson’s report – 7 pages plus an appendix and exhibits.

d) Affidavit of Professor Douglas W. Allen, Simon Fraser University – 26-page report and curriculum vitae.

e) Affidavit of Roger Gallaway – 119 pages of documents he received in response to an Access to Information Act , RSC 1985, c A-1 regarding internal correspondence on the Federal Department of Justice’s Research Report titled “Formula for Table Amounts Contained in the Federal Child Support Guidelines : A Technical Report.” [ 19 ] The AGC filed the following evidence in response:

a) Affidavit of Charlotte Harper, Paralegal with the Department of Justice – with 41 exhibits – including, reports, parliamentary and senate proceedings and other background material related to the Guidelines – approximately 2600 pages.

b) Affidavit of Professor D.A.

Rollie Thompson, Q.C., Dalhousie University – Rebuttal Report to Professor Sarlo and Professor Allen’s reports – 29 page report plus his curriculum vitae. [ 20 ] Professors Allen, Sarlo and Thompson were all cross-examined on their affidavits. [ 21 ] The Supreme Court of Canada in its recent decision in Michel v Graydon , 2020 SCC 24 [ Michel ] reviewed much of the pre- Guidelines jurisprudence and legislation regarding child support. [ 22 ] I note the following salient points from Michel : • Statutory child support has existed since 1885: see para 45. • Early statutory schemes, including the Divorce Act , vested discretion in judges to determine child support amounts based upon need: see para 46. • This discretionary approach was subject to criticism for a variety of reasons including the lack of consistency of awards and the burden it placed upon custodial parents: see para 48. • The Guidelines were intended to remedy these criticisms and were intended to provide certainty, consistency and predictability: see para 49. [ 23 ] The inconsistency in child support awards led to calls for reform.

In 1990 a Federal/Provincial/Territorial (FPT) Family Law Committee (FPT Committee) was struck to study the issue. Between 1990 and 1994 the Committee studied the development of a guideline system in Canada and issued a report in 1995 titled “Report and Recommendations on Child Support” [Committee’s Report]. [ 24 ] The FPT Committee recommended a Revised Fixed Percentage formula [RFP Formula]. The

preamble of the report noted that the report reflected the views of the authors and not the departments or governments that they worked for. The FPT Committee Report, at page 28, recommended that the RFP Formula be incorporated into legislation and applied by the courts as a rebuttable presumption. The RFP Formula is used to estimate the quantum of expenditures on children and ultimately determine the presumptive table amounts. [ 25 ] In 1996, Bill C-41,

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act , 2nd Sess, 35th Parl, 1996, (as passed by the House of Commons 18 November 1996) was introduced [Bill C-41]. [ 26 ] Bill C-41 contained amendments to the Divorce Act that introduced comprehensive revisions to the statutory framework related to child support. I note the following amendments: •

Section 15 in the Divorce Act was replaced in its entirety and spousal and child support were split into separate sections. • Child support fell under

section 15.1 and spousal support fell under

section 15.2. •

Section 15.1(3) was introduced which references “applicable Guidelines .” •

Section 26.1(1) expressly authorized the GIC to establish Guidelines respecting orders for child support. •

Section 26.1(2) required that the Guidelines be based upon the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities. [ 27 ]

Section 26 of the Divorce Act contains the initial regulation making authority conferred on the GIC.

Section 26.1 was specifically enacted to authorize the promulgation of child support Guidelines . [ 28 ] The Guidelines were promulgated by the GIC on May 1, 1997. They contain 27 sections, and table amounts (Schedule 1) for each province and territory except for Quebec. [ 29 ] Quebec has adopted its own model. [32] The Guidelines contain detailed provisions to determine child support amounts based upon the RFP Formula that was recommended by the FPT Committee. [ 30 ]

Section 26 provides the general regulation making authority for the GIC under the Divorce Act while 26.1 deals specifically with the Guidelines and was added to the Divorce Act by Bill C-41.

[ 31 ] The subject matters listed in items (

a) through (

g) of s 26.1(1) of the Divorce Act address the primary issues (e.g. quantum, duration, discretion, determination of income, etc) that would be necessary to implement any type of child support regime. However, the grant is not restricted to the items listed in (

a) through (

g) by virtue of the “but without limiting the generality of the forgoing” language. It is clear that Parliament intended to confer on the GIC a broad authority to implement regulations that it saw necessary to establish guidelines for child support. [ 32 ] In West Fraser Mills , the Supreme Court of Canada considered s 225 of the Workers Compensation Act , RSBC 1996, c 492 , which granted the following authority to the Workers Compensation Board (Board) of British Columbia:

(1) In accordance with its mandate under this Part, the Board may make regulations the Board considers necessary or advisable in relation to occupational health and safety and occupational environment.

(2) Without limiting subsection (1), the Board may make regulations as follows: (

a) respecting standards and requirements for the protection of the health and safety of workers and other persons present at a workplace and for the well-being of workers in their occupational environment; (

b) respecting specific components of the general duties of employers, workers, suppliers, supervisors, prime contractors and owners under this Part; [….] [ 33 ] The Supreme Court of Canada concluded that the British Columbia legislature authorized the Board to enact whatever regulations it deemed necessary to achieve appropriate workplace health and safety and noted that the grant “could not have been broader”: West Fraser Mills at para 10 . [ 34 ] I find that the similar language used by Parliament in s 26.1(1)’s grant of authority to the GIC is similar to the grant contained in West Fraser Mills and supports a conclusion that s 26.1(1) confers a broad grant of authority on the GIC to pass guidelines related to child support under the Divorce Act .

Purpose and Context [ 35 ] A review of the legislative history of the amendments to the Divorce Act , reveals that a need for more consistency in child support awards was one of the primary catalysts for the introduction of the Guidelines . The policy work underlying the Guidelines was initiated by the FPT Committee in the early 1990s. The development of the legislative amendments to enable the Guidelines along with the Guidelines was occurring in a parallel fashion. The amendments to the Divorce Act needed to occur first to enable the promulgation of the Guidelines .

However, Members of Parliament and Senators had copies of draft Guidelines at the time that the amendments to the Divorce Act were moving through Parliament and the Senate.

Section 15.1(1) of the current Divorce Act authorizes a court of competent jurisdiction to make a child support order and references the Guidelines in

section 15.1(3) . [ 36 ] While the decision whether to promulgate the Guidelines and/or the specifics of the final version rested with the GIC it was clear that Parliament was intent on paving the way for significant reform to the method by which support awards were calculated and awarded. Parliament clearly wished to authorize the GIC to implement guidelines with a view to ensuring more predictability and consistency in child support orders.

Section 26.1(2) and The Limiting Principles [ 37 ] Mr. Auer did not focus his submissions on s. 26.1(1) but instead focussed on 26.1(2) which directs that the guidelines will be based upon the principle that spouses have a joint obligation to maintain children of the marriage and that such obligation will be based upon their relative abilities. Mr. Auer relied primarily on this

section to substantiate his argument that the GIC was under a “specific constraint” when it promulgated the Guidelines . [ 38 ] Mr. Auer also argued that the GIC could not “reverse engineer” an overall outcome and had to rigorously apply s 26.1(2) as a limit on its authority [1] . He specifically argues that the Limiting Principles give rise to two constraints: The Guidelines must be for:

a) The maintenance of children; and

b) Reflect the parent’s respective abilities to contribute to that maintenance. [ 39 ] Mr. Auer submits that the Guidelines do not comply with these constraints and also argues that the Guidelines “are animated by a suspicion or disdain for NCP [non-custodial parent] households.” [ 40 ]

Section 26.1(2) must be considered in determining the grant of authority to the GIC as it directly follows the primary grant of authority in s. 26.1(1) in the Divorce Act and it speaks specifically of Guidelines . [ 41 ] The wording contained in s 26.1(2) was originally contained ss 15(8) and 17(8) of the 1985 Divorce Act , and Bill C-41 sought to remove this wording from the Divorce Act entirely. [ 42 ]

Section 26.1(2) was proposed by the Senate and when Bill C-41 returned to Parliament the amendment was accepted. [ 43 ] Senator Duncan Jessiman proposed the amendment and stated that “it has now been agreed to leave in the [Act] that the guidelines will be drawn with those principles involved.” [2] [ 44 ] When Bill C-41 returned to the House of Commons, two days later, Parliamentary Secretary Kirkby [3] stated:

• There is a clear recognition that the guidelines that have been put in place are a great improvement over the current system. • This bill is about children. • Bill C-41 through the introduction of the child support guidelines reaffirms the objective that both parents have a joint financialobligation to support their children. • The minister has always supported the objective that both parents are financially responsible for the needs of their children.

Thisobligation is included in the Guidelines but to give more importance, the minister agreed that it be reintegrated in the [Act] to ensure thatany guidelines will respect that principle.[4] [45] All provisions within a statute must be given a meaning.

It is clear in this instance that the Senate as well as the Minister ofJustice and Attorney General felt it was important to include the section. [46] The AGC argues that s 26.1(2) “gives context for the entire Act”[5] and argues that a purpose statement is intended to guidediscretion. [47] Professor Sullivan in her text[6] states the following with respect to purpose statements: Purpose statements typically take one (or both) of the following forms: they set out the goals the legislature hope to achieve, or they setout the policies and principles that are to guide any discretion conferred on officials, tribunals or courts in applying the legislation. [48] Professor Sullivan also noted: Because purpose statements are enacted as a provision of the legislation, they carry significant weight.

However, because they areinterpretative in character, they carry less weight than a substantive provision[7]. [49] Mr. Auer points out that the word “shall” is included in 26.1(2) and argues that inclusion of the word “shall” is more than asuggestion and acts as a mandatory direction to the GIC. [50] I am unable to accept the AGC’s suggestion that s 26.1(2) merely gives context to the entirety of the Divorce Act. Section26.1(2) is specifically directed at the construction of the Guidelines to determine child support as opposed to the Divorce Act as a whole.I noted above that the contents of this

section used to be included in ss 15(8) and 17(8) of the Divorce Act prior to the amendmentsushered in by Bill C-41. [51] Based upon the legislative debate and passage of Bill C-41, I conclude that s 26.1(2) was included to reflect a direction to theGIC that the Guidelines should reflect the principle that parents have a joint obligation to support their children in accordance with theirmeans. Mr. Auer pointed to passages in the House of Common Debates in 1996 where the plight of NCP parents was raised and issue ofjoint responsibility was raised.

I accept that the issue of joint financial responsibility of parents was at the forefront when the Divorce Actamendments were debated. [52] In light of the legislative background underlying s 26.1(2), I accept that s. 26.1(2) informs, and to a degree, constrains theGIC’s grant of authority under s 26.1(1). However, that constraint must also be weighed against the extremely broad grant of authorityconferred upon the GIC to implement a system of guidelines. [53] Mr.

Auer submits that the analysis in West Fraser Mills regarding the breadth of the grant of authority is not applicable herebecause of the limiting nature of s. 26.1(2). He instead points to the decision of Gitxaala Nation v Canada, 2016 FCA 187 [Gitxaala]and Kabul Farms Inc v Canada Inc, 2016 FCA 143 [Kabul].

I do not find either of these decisions to be helpful to the present case.Gitxaala was a complicated matter concerning Enbridge’s ill-fated Northern Gateway project and dealt with 14 judicial reviews relatedto the issuance of two certificates of Public Convenience and Necessity and challenges to a report issued by a Joint Review Panel.

Thedecisions of the GIC in Gitxaala were not legislative decisions but instead were administrative decisions involving the duty to consultwith Aboriginal peoples. [54] Kabul, a decision of the Federal Court of Appeal, dealt with a decision of the Director of Financial Transactions and ReportsAnalysis Centre of Canada regarding money laundering transactions.

The Federal Court of Appeal was critical of the Director and madereference to the evidentiary record that was before the Director and stated that “...we would have to simply assume or trust that theDirector had good reasons for the numbers he chose”: Kabul at para 26 [55] Mr.

Auer, at paragraph 104 of his Brief of Argument, argues that Kabul is instructive and this Court “must nonetheless besatisfied that the figures chosen by the GIC at each step are underpinned or justified by some reasoning or evidence in the record.” [56] In Kabul there was a record before the Federal Court of Appeal of the submissions that the Director received and considered.The Federal Court of Appeal specifically discussed the range of scrutiny that should be applied to administrative decision makers: Kabulat paras 24-27. [57] In the present case the GIC was not acting in an administrative or adjudicative manner.

It was acting in a legislative mannerand this Court has no record of what was before the GIC or a set of reasons against which to measure whether the regulation is justified,intelligible or transparent: Vavilov at para 95. That does not mean this Court will “rubber stamp” the legislative conduct of the GIC orgrant it “carte blanche” authority. However, judicial precedents concerning administrative decisions that are adjudicative are not entirelyapplicable in the context of an administrative decision that was made in a legislative matter or capacity.

In this regard, the manner inwhich the GIC is acting (i.e., whether legislative or adjudicative) must be born in mind. [58] Mr. Auer also points to the decision of Gach v Brandon (Welfare) (1973), (MB CA), 35 DLR (3d) 152(Manitoba Court of Appeal) [Gach] as an example of a case where a delegated authority (i.e. Manitoba’s Lieutenant-Governor in

Council) exceeded its authority. In that case, Ms. Gach had been denied welfare support because the subordinate regulation deemed her parent’s financial resources to be available to her. The grant that the Social Allowances Act , RSM 1970, c S160 contemplated in the regulations was exceeded. The Act specifically defined “financial resources” in a manner that was inconsistent with the deeming provision of the impugned regulation enacted by the Lieutenant-Governor in Council. The Gach decision is more reflective of the process that this Court will undertake in conducting its vires assessment. V.

Position of the Parties Mr. Auer [ 59 ] Mr. Auer argues, inter alia , that the Guidelines are unlawful because they require a non-custodial parent [NCP] [8] to pay a greater share of the child costs than the custodial parent [CP]. He argues that the Divorce Act only authorizes the transfer of income from one parent to another for the reasonable maintenance of children and the amount must be based upon the relative abilities of each party. Mr. Auer relies heavily upon s 26.1(2) of the Divorce Act as the source of a constraint on the GIC.

Section 26.1(2) directs that the Guidelines be based upon the principle that spouses have a joint financial obligation to maintain their children and their contributions to such an obligation should be based upon their relative abilities. [ 60 ] Mr. Auer points to a number of assumptions and design features of the Guidelines to support his position.

By way of example, he points to the presumption that both the NCP and CP both earn the same income, a court’s authority to award s 7 extraordinary or special expenses and the decision not to include child tax benefits/credits in the CP’s income as all in support of his vires challenge. [ 61 ] Mr. Auer acknowledges that the GIC is permitted to make policy choices but argues that when the Guidelines are considered as a whole, they are unlawful because they exceed the scope of what Parliament permitted the GIC to enact under the Divorce Act . AGC [ 62 ] The AGC submits that Mr.

Auer’s application misapprehends the very nature of a vires challenge. The AGC argues that a vires review is primarily an exercise in statutory

interpretation and notes that there are no written reasons of the GIC for this Court to review for transparency, intelligibility and justifiability. The AGC notes the broad grant of authority given to the GIC under the Divorce Act and argues that the Guidelines are consistent with this grant of authority. [ 63 ] Finally, the AGC cautions this Court against considering the efficacy of the Guidelines or accepting Mr. Auer’s invitation to enter into a policy debate regarding the Guidelines . The AGC does not raise any issues of mootness or suggest that there is not a lis between the parties.

The AGC requests that the vires review be dismissed. VI. Analysis Are the Guidelines Ultra Vires the Divorce Act? [ 64 ] The primary issue that I must determine is whether the Guidelines represent a reasonable exercise of the authority delegated by Parliament to the GIC as set out in ss 26.1(1) and (2) of the Divorce Act . My task is primarily one of statutory

interpretation: West Fraser Mills at para 12 . [ 65 ] The principles of modern statutory

interpretation require me to read the words of the relevant sections in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and intention of Parliament: Rizzo and Rizzo Shoes Ltd (Re) , 1998 1 SCR at para 21[ Rizzo ] and Canada Trustco Mortgage Co v Canada , 2005 SCC 54 at para 10 . [ 66 ] Determining whether the GIC acted reasonably includes consideration of the text of the grant in the Divorce Act as well as the Guidelines themselves. Put another way, are the Guidelines consistent with the grant of authority.

In making this determination, I also need to consider the purpose and context of the legislation. I start my analysis with the grant of authority under the Divorce Act . [ 67 ] Mr. Auer bears the onus to demonstrate that the Guidelines are not authorized by the Divorce Act . [ 68 ] Mr. Auer was candid in conceding that his primary complaint regarding the Guidelines focussed on the table amounts and presumptive amounts that are dictated by s 3 of the Guidelines . [ 69 ] More specifically, he argues that the Guidelines are not lawfully authorized because they:

a) Fail to recognize the relative ability of each spouse to contribute because the Revised Fixed Percentage model used in the Guidelines looks only at the income of the payor; and

b) The Table amounts in the Guidelines do not reasonably reflect the costs of reasonably maintaining children. [ 70 ] Mr. Auer raises a number of arguments to substantiate the above shortcomings and specifically notes that Footnote 5 in

Schedule 1 of the Guidelines is inaccurate and misleading. [ 71 ] The affidavits of Professor Sarlo and Professor Allen both contain a significant amount of opinion evidence and are largely a critique of the Guidelines ; however, they do also contain factual matters and address the history leading up to the passage of the Guidelines . Mr. Gallaway’s affidavit contains documents that were in the possession of the Federal Department of Justice including a

draft of the Technical Report that dealt with method of calculating the table amounts for the Guidelines . [ 72 ] Charlotte Harper’s affidavit attached a number of studies, reports and transcripts of legislative proceedings. She does not offer any opinions with respect to the documents. Professor Thompson offers a critique of Professor Sarlo and Allen’s analysis of the Guidelines and an explanation of the general characteristics of child support guidelines. [ 73 ] The AGC takes the position that consideration of the wisdom or effectiveness of the Guidelines is beyond the scope of a vires review.

Moreover, the AGC urges this Court not to consider the motives, partisan or otherwise, that motivated the GIC in promulgating the Guidelines . [ 74 ] I largely accept the position of the AGC in this regard. These are well established principles regarding the nature of a vires review.

With respect to evidence filed by both parties, I have considered the evidence regarding the legislative history, context surrounding the development of the Guidelines and other factual matters; however, the opinion evidence that canvases policy considerations or the effectiveness of the Guidelines is beyond the scope of this application. [ 75 ] I also note that I do not have any Certified Record of Proceedings of what was before the GIC when the Guidelines were promulgated.

In conducting the vires review, I have considered the legislative intent of Parliament in passing the Divorce Act amendments and documents that were prepared to support the anticipated Guidelines . Unlike the situation in Catalyst Paper Corp v North Cowichan (District ), 2012 SCC 2 [ Catalyst ], I do not have the benefit of the GIC’s deliberations as they are confidential. In Catalyst , the deliberations of the relevant municipality were public and the Supreme Court held that that regard could be had to such deliberations: Catalyst at para 29.

Section 26.1(1) of the Divorce Act [ 76 ] I have already determined that the grant of authority under s 26.1(1) is extremely broad and similar to the grant considered in West Fraser Mills . In the absence of s 26.1(2), I would have little difficulty in concluding that the GIC acted reasonably in promulgating the Guidelines . [ 77 ] The Guidelines are consistent with the purpose of the legislative amendments that occurred in 1996, as they seek to implement a comprehensive child support regime that is characterized by greater certainty and consistency. They also focus upon a child’s entitlement to support. A comparison of the matters set out in s 26(1)(

a) to (

h) of the Divorce Act relative to the Guidelines reveals a high degree of correlation. Put another way, the matters authorized in s 26(1)(

a) to (

h) of the Divorce Act are found in the Guidelines . For example: • Item (

b) authorizes guidelines respecting discretion: Sections 3(2) b, 4 , 7 , 9 , 10 of the Guidelines are all examples of sections that confer discretion on a Court making an order for child support. • Item (

c) authorizes guidelines to require child support orders to be payable by lump sum or periodic sums:

Section 11 of the Guidelines specifically authorizes this. • Item (

e) authorizes guidelines respecting circumstances under which a variation may occur:

Section 14 of the Guidelines addresses what constitutes a change in circumstances that may give rise to a variation order. • Items (

f) and (

g) authorize guidelines respecting the determination of income and imputation of income: Sections 15 - 19 of the Guidelines specifically address these issues. [ 78 ] It is also important to note that factors (

a) to (

h) are not exhaustive. The GIC is entitled to pass guidelines “respecting orders for child support.” Based upon my holistic review of the Guidelines , I am satisfied that its contents and provisions are all in respect of and in furtherance of child support orders. Having regard to s 26.1(1) and the test in Katz , I do not conclude that any of the Guidelines ’ provisions are “irrelevant, extraneous or are unrelated to the purpose of “child support.”

Section 26.1(2) of the Divorce Act [ 79 ] In light of my finding that s 26.1(2) must be considered and provides more than context when assessing whether the GIC acted reasonably when it promulgated the Guidelines , I will address Mr. Auer’s arguments regarding: (

a) relative ability of each spouse; (

b) maintenance of children; (

c) section 7 “double dipping” and (

d) Footnote 5 of

Schedule 1 of the Guidelines . Relative Ability of Each Spouse [ 80 ] Mr. Auer argues that when an order for child support is made under s 3 of the Guidelines , only the income of the payor parent is considered and therefore, the “relative ability of each spouse” is not considered and is consequently inconsistent with s 26.1(2). He argues that s 26.1(2) is breached because only the payor’s income is taken into account. [ 81 ] While the GIC implemented the Guidelines , it is necessary to review the background and legislative context surrounding the amendments to the Divorce Act that facilitated the Guidelines .

The FPT Committee’s Report references their earlier 1992 Research Report that developed 7 different apportioning models. The reference to “apportioning” relates to how expenditures on children are split between separated parents. [ 82 ] The Committee described the RFP Formula as follows: The formula is guided by the principles that both parents have a responsibility to meet the financial needs of the children according to their incomes and that all non-custodial parents who earn the same income have the capacity to pay the same award regardless of the

custodial parent’s income. [ 83 ] Professor Thompson in his rebuttal report [9] explained there are basically three types of models used to distribute the costs of children between separated parents: (

a) Percentage of Obligor Income; (

b) Income Shares; and (

c) Melson Model (a hybrid of (

a) and (

b) above) [ 84 ] The model chosen by the GIC was a Percentage of Obligor Income. Professor Thompson explains that “obligor” is equivalent to “payor.” He notes that models “a” and “b” dominate in the United States and that Quebec has chosen an Income Shares model. [ 85 ] In the context of a vires review, it is not my role to weigh the pros and cons of each model.

Instead, I am focussed on determining whether the GIC acted reasonably when it chose this model having regard to the provisions of 26.1(1) and 26.1(2) of the Divorce Act . [ 86 ] The RFP formula is based on the assumption that both the CP and NCP parent earn the same income and therefore the CP is expected to similarly support the child. [ 87 ] This is an assumption that underlies the RFP model recommended by the Committee.

During the passage of Bill C-41, this assumption was challenged given that the CP and NCP will likely not earn the same income. [ 88 ] Then Minister of Justice, Allan Rock, addressed this issue during debates regarding Bill C-41. [ 89 ] He first stated: …the family law committee struggled for some time with the question of whether they should adopt a model that worked on the income of both parties or whether it was appropriate to work from just one. The approach you see reflected in these guidelines is based on the following assumptions, which the committee eventually decided were sound.

First, the standards of living of a child and of the parent with whom that child lives are inseparable. If I have sole custody of the child, that child has my standard of living. If I have two children in my sole custody they have my standard of living. They’re inseparable. … Why is it fair to disregard the income of the custodial spouse? Because the custodial spouse is already paying the average proportion. It’s inescapable. [10] [ 90 ] Later when speaking to a Standing Senate Committee, Minister Rock stated: What about the custodial parent? Why should he or she not have to contribute?

That person does contribute, because the standard of living of the child and the parent who has custody are inseparable. It is impossible to look differently at my standard of living and at the standard of living of my children. […]. We have started from the presumption that the custodial parent also spends the same average proportion of his or her income on the children. […]. Again, just as before separation, the child enjoys a standard of living that reflects the total income of both parties.

That does not mean that the non-custodial parent’s support payments should decrease, just because the custodial parent’s income has gone up to $80,000 [and the non-custodial is $50,000]. It should not decrease, because they want that child to have the standard of living reflecting $130,000, and it would not if we decreased the support being paid by the parent making $50,000. That is the theory. To me, it is compelling. [11] [ 91 ] It is clear that the issue raised by Mr.

Auer was in play at the time Bill C-41 was being debated in the Fall of 1996 and government of the day was live to the issue. [ 92 ] While Minister Rock in the above statements characterized the proposed Guideline s as “disregarding” the income of the custodial parent, this is not entirely accurate as the formula that underlies the table amounts presumes that the NCP and CP have the same income. [ 93 ] While this assumption at first blush may seem technical, it is consistent with the principles of “joint financial obligation” and “relative ability.” [ 94 ] In DBS v SRG , 2006 SCC 37 [ DBS ], which dealt with retroactive support, Justice Bastarache spoke with approval of the payor parent approach of the Guidelines : The Divorce Act in the Guidelines era thus confirms that there still exists a free-standing obligation for parents to support their children commensurate with their income.

Its payor parent income-based approach then shapes this obligation, with the result that the total amount of child support is determined — and not merely divided — according to the income of the payor parent. A parent who fails to do this will have failed to fulfill his/her obligation to his/her children: para 48. [ 95 ] My

interpretation of Minister Rock’s point is that both parents have an obligation to support their children and that children should benefit from the resources of both parents. The RFP formula starts from the presumption that both parents earn the same income and the amount of child support is calculated based upon the payor’s income.

[96] In the circumstance, where the children reside primarily with one parent the table amount calculated under s 3 requires theNCP to support their child in a manner that is consistent with their income. [97] The CP is presumed to also be supporting their child in a manner that is proportionate to their income as the child is residingwith the CP.

Therefore, the model does not require explicit regard to the CP’s parent’s income because the NCP’s obligation flows fromtheir income level. [98] Francis v Baker, (SCC), [1999] 3 SCR 250 [Francis] considered s 4 of the Guidelines which deals withincomes that exceed $150,000.

Justice Bastarache considered both the wordings of the Guidelines and legislative history before heconcluded that the purpose of the Guidelines is to “establish fair levels of support children from both parents”: ibid at para 33. [99] The Federal Government’s Technical Report that was released following the Guidelines sets out a number of the goals andassumptions that underlie the regulation. The report notes that one of the goals of the model is to equalize the financial circumstances ofthe two households[12] and that in order to achieve this, a redistribution of the combined financial resources needs to occur.

The tableamounts are intended to maximize the amount transferred to support the children residing with the CP.[13] [100] The redistribution of income is again consistent with the principle of “joint obligation” because the CP is responsible for theday to day care of the children. The transfer of income from the NCP to the CP is utilized by the CP to support the children. However,the children also benefit from the resources of the CP. The CP is also utilizing the proportionate share of their income to support thechildren as well. [101] Contino v Leonelli- Contino, 2005 SCC 63 [Contino] considered the

interpretation of s 9 (shared custody) of the Guidelines andconsidered the legislative history of the Bill C-41.

The Court confirmed that formula used to determine table amounts was based uponthe assumption that the responsibility for child-related expenses rests with the CP: ibid at para 36. [102] A plain reading of the Guidelines, without the benefit of understanding the principles and assumptions underlying theGuidelines, and in particular the modelling that generates the table amounts, may lead to the conclusion that an Order under s 3 does notconsider the payee spouse’s income. [103] However, for the reasons set out above, the model chosen by the GIC was designed to ensure that both parents contribute to thecost of raising their children.

Both parents contributing a proportionate share is consistent with the principles of “joint financialobligation” and “relative abilities.” [104] Mr. Auer raises several arguments regarding the effectiveness/fairness of the assumptions and principles(e.g. child tax benefitsare not included in the CP’s income) that underlie the model chosen by the GIC; however, as stated above those issues are beyond thescope of a vires review. It is not my role to determine whether this was the best, fairest or most effective model.

Guidelines are More Than the Presumptive s 3 Table Amounts [105] The AGC points to the following provisions in the Guidelines in support of the argument that the relative ability of each spouseis considered in a number of provisions: • Section 3(2)(b) – child age of majority or older – this

section permits a court to consider financial ability of each spouse. •

Section 4 – incomes over $150,000 – if a court determines that the amount of support is inappropriate it may consider the financialability or each spouse when considering the payor spouses’ income in excess of $150,000. •

Section 7 – special or extraordinary expenses – these expenses are shared on a proportionate basis having regard to both spouses’incomes. •

Section 8 – split custody – the amount of child support explicitly considers each spouses’ income. •

Section 9 – shared custody – if the 40% threshold is met each spouse’s income as well as other factors are considered in settingthe relevant amount of support. •

Section 10 – undue hardship – this

section preserves discretion and allows a court to depart from the table amounts if a spouse orchild would suffer hardship. [106] I do not have evidence before me regarding how frequently these sections are applied to override the presumptive nature of s 3awards.

There is no doubt that are many instances of s 3 awards routinely being made and none of the above sections being engaged thatrequire the consideration of the payee spouse’s income. [107] However, in undertaking this vires analysis, I accept the AGC’s position that I need to have regard to the Guidelines as a wholewhen determining whether the GIC acted reasonably. [108] The above sections, by themselves, are consistent with the principle of joint financial obligation and consideration of relativeabilities set out in the Divorce Act, being the enabling statute for the Guidelines. [109] In conclusion, I find that the Guidelines requirement under s 3 is consistent with the principles of “joint financial responsibility”and “relative ability” for the reasons set out above.

Costs of Reasonably Maintaining Children

[ 110 ] Mr. Auer argues that s 26.1(2) requires that any guidelines passed by the GIC must be for the maintenance of children. [ 111 ] Both parties agree that there is no one approved or best method of measuring costs of children. [14] [ 112 ] Mr. Auer also concedes that the use of an equivalence scale is viable way to estimate the cost of children. [15] Mr. Auer’s primary objection is to the 40/30 scale that was chosen.

Committee’s Recommendation [ 113 ] The FPT Committee recommended a 40/30 Equivalence scale. [ 114 ] The Committee further stated: The 40/30 equivalence scale is proposed in the absence of a definitive and perfect method for determining expenditures on children which is totally reliable and without criticism.

Therefore, a reasonable set of round numbers derived from empirical research and a public consultation process could be used and produce reasonable results. [16] [ 115 ] The Committee reported that it examined a number of models to try and determine expenditures on children and that its initial proposals did not receive support following consultation.

The FPT Committee reported that it brought together various economists and experts, and ultimately chose the 40/30 equivalence model. [17] [ 116 ] The Committee, at pages 59 to 63 of its report, provides an explanation of equivalency model and the rationale for choosing the 40/30 scale. The Committee also explains that the 40/30 scale was derived from a paper that utilized Statistics Canada low-income cut- off data.

Following consultation with Statistics Canada and economists, it was determined that the Committee would recommend the 40/30 scale. [ 117 ] The FPT Committee’s report also confirms that Guidelines only compensate the CP for the direct costs of children [18] Mr. Auer’s Expert Reports [ 118 ] Professor Sarlo’ and Professor Allen’s reports are critical of the choice of the 40/30 scale and the RFP model. Professor Sarlo engages in a detailed review of the history of the process leading up to the Guidelines and associated table amounts.

He also critiques the Guidelines in relation to , but not limited, to the following: • that they do not take into account costs incurred by NCPs in caring for the children; • that government benefits received by CP’s are not considered as means available to them; and • that s 7 special/extraordinary expense were added to the Guidelines and are not justified. [ 119 ] Finally, Professor Sarlo also undertakes a “should pay – do pay” analysis to support his conclusion that the amount transferred in some circumstances results in a “net wealth transfer.” Professor Allen largely reviews, supports and reinforces Professor Sarlo’s work. [ 120 ] Both reports raise a number of issues regarding the effectiveness, fairness and desirability of the Guidelines and choices that were made when they were developed.

These are all policy issues that are beyond the scope of a vires judicial review. [ 121 ] Mr. Auer advances the argument that the Guidelines are only permitted to transfer estimated child costs from the NCP to the CP. He argues that if the Guidelines transfer a greater sum, that should result in a finding that the Guidelines are ultra vires because a net wealth transfer has occurred. [ 122 ] When the GIC is acting in a legislative capacity it enjoys the broadest of discretion.

The determination of the scope, nature and effect of child support guidelines is largely a policy-based decision. [ 123 ] Based upon my review of Professor Sarlo and Professor Allen’s work as well as the FPT Committee’s Report , it is clear that many choices existed. The GIC chose to implement essentially the recommendation of the FPT Committee. [ 124 ] There is nothing in the Committee’s report to suggest that the recommended model was designed to require NCPs to transfer funds to CPs for anything other than child support related matters. [ 125 ] While Mr.

Auer focuses on s 3 awards, this Court needs to consider the Guidelines as a whole. I also need to consider that there is no established formula to determine how much money it costs to raise a child. There are myriad factors that influence how much it costs to support children. The Guidelines amounts do not vary depending upon the age of children. Different children at different times of their lives will require more or less parental support. One of the goals of the Guidelines was to create certainty and greater ease of calculation.

One size does not fit all, and the imposition of a guideline-type system will impact individuals differently. Again, the Guidelines vest discretion in courts to depart from presumptive amounts in certain circumstances (e.g., undue hardship, income amounts that exceed $150,000). [ 126 ] Mr. Auer characterizes the Committee’s process of developing and recommending its model as arbitrary and unsupported. While considering the reasonableness of the GIC’s decision, I noted already that it did accept the Committee’s recommendation.

I have set out above the process that the Committee followed because, in my view, it is relevant to the reasonableness of the GIC’s decision to accept the Committee’s recommendation.

[ 127 ] The Committee acknowledged that they did not have a perfect process, but they considered a number of possibilities; and when the initial models were deemed unsuitable, they considered additional models. In addition to consulting economists and stakeholders, they also had regard to past child support orders with a view to calibrating their recommended model. All of these steps, in my view, are the hallmark of sound policy development and demonstrate reasonableness. [ 128 ] I find that the selection of the 40/30 equivalency scale by the GIC was not arbitrary or unreasonable.

Mathematical Analysis [ 129 ] Mr. Auer relies specifically upon a number of calculations performed by Dr. Sarlo in

section 7 of his report, which is titled: “The Mathematics of the Guidelines.” [ 130 ] Professor Sarlo focuses on a case example contained in a draft version of the Technical Report that was released by the Department of Justice following the promulgation of the Guidelines . The draft report was obtained by Roger Gallaway, a Member of Parliament, through an access to information request filed in 2001. The report is attached to an affidavit sworn by Mr. Gallaway that was filed in the Federal Court Action. The version attached to Mr.

Gallway’s affidavit is “draft #16, August 20, 1997.” The draft report contains a case study of a fictional couple in Newfoundland that are separated and have two children. The parents have equal incomes and the children both reside with the CP. Dr. Sarlo dubs this case study the “Newfoundland Illustration” and notes that the case study did not appear in the final Technical Report that was released in December of 1997. [ 131 ] The draft report finds that in the “Newfoundland Illustration,” the standard of living of the custodial household is 11.1% higher than that of the non-custodial household. Dr.

Sarlo points to this finding as evidence that the Guidelines do not “add up.” Dr. Sarlo provides additional illustrations employing what he “believes are more realistic and more reasonable assumptions.” [19] He provides further illustrations and examples that, in his view, demonstrate situations where the standard of living is not equalized between CP and NCP households. [ 132 ] Dr. Sarlo’s analysis is largely an exercise in testing the effectiveness of the Guidelines . Dr.

Sarlo describes the purpose of s 7 of his report as: “to take the child support Formula as it is stated, and determine if the outcomes are consistent with the stated goals and objectives under different circumstances.” [20] [ 133 ] In the arena of a public policy or economic debate, Dr. Sarlo’s report would find a welcoming home. However, in my view, it is largely unhelpful in a vires judicial review. [ 134 ] As already noted, a vires judicial review is largely an exercise of statutory

interpretation. Mr. Auer bears the onus of demonstrating that the GIC’s promulgation of the Guidelines was not reasonable. [ 135 ] Even if I were to accept that his findings were accurate and that there are examples of situations where the standard of living is not equalized between the NCP and CP households, that does not, in my view, lead to the conclusion that the GIC acted unreasonably.

Similarly, if I were to accept that some CP do not spend all of the government benefits that they receive on their children that does not render the GIC’s decision to promulgate the Guidelines unreasonable. [ 136 ] Almost all government programs that involve the expenditure of government funds or compel citizens to pay funds are statutorily authorized and often by regulation. These programs may or may not achieve their political architect’s goals and many times, they have unintended consequences that may expose governments to criticism.

However, the jurisprudence is clear that it is not the role of a court to assess whether such initiatives are “necessary, wise or effective in practice”: Katz at para 27. The Guidelines were intended to set child support amounts for children across the country who have parents in a variety of different circumstances. The fact that the goals of the Guidelines are not always met does not, in my opinion, render the GIC’s decision to adopt them unreasonable.

Furthermore, the Guidelines contain a number of provisions that vest discretion in courts to allow them to remedy hardship or account for individual circumstances. [ 137 ] I make no specific finding regarding the accuracy of Dr. Sarlo’s economic analysis; however, I have concerns about him relying upon calculations contained in a draft report. I do note that he qualifies his own analysis by noting that it is conditional upon the Department of Justice having determined the “tax and government benefits” correctly for 1996. [ 138 ]

Section 26.1(2) directs that the Guidelines “shall be based upon the principle that spouses have a joint financial obligation to maintain the children of the marriage…”( emphasis added ). For the reasons set out above, I conclude that the Guidelines promulgated by the GIC are related to the purpose of maintaining children of separated/divorced parents. As noted by the parties, there is not a single approved way to determine the costs of raising children that would allow a court to determine the exact amount in each case and determine whether too much or too little had been transferred from a NCP to a CP.

Based upon my review of the evidence and records, I am not persuaded that the Guidelines depart from their stated purpose of “determining a fair standard of support for children.” [21] While the GIC could have made choices that would have reduced the amount transferred for child support or selected a different model, that does not lead me to conclude that the Guidelines , as promulgated by the GIC, are intended to transfer funds for any purpose other than child support.

Section 7 Double Dipping [ 139 ]

Section 7 of the Guidelines permit a court to order child support for special or extraordinary expenses in addition to a s 3 award. Examples include: child care, health related expenses and educational expenses. [ 140 ]

Section 7 directs a court to consider: “the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”

[141] Mr. Auer argues that s 7 further favours the CP by overcompensating the CP and represents a “break in logic underlying theGuidelines and is another example of reverse-engineering the goal of increasing awards above the amounts that would flow from acoherent application of the formula.”[22] [142] Mr. Auer correctly notes that the FPT Committee did not recommend a formula that included a separate calculation for childcare costs.

However, the FPT Committee was live to this issue and did discuss the advantages/disadvantages of having “add on childcare costs.”[23] [143] The 40/30 equivalence scale was intended to include all child care expenses. Mr. Auer also points out that the FPT Committeenoted that the 40/30 equivalence scale tended to produce higher estimates of child expenditures than other models.[24] Mr.

Auer arguesthat the GIC’s decision to include s 7 in the Guidelines is unreasonable because it is inconsistent with the 40/30 scale. [144] It is important to note that the FPT Committee identified that a model, such as the 40/30 equivalence scale, that did not dealwith child care expenses might “not fully compensate for the actual child care costs.”[25] [145] I have no evidence before me explaining the reasons why the GIC chose to include s 7.

However, it is clearly directed towardsthe maintenance of children and is intended to address “special or extraordinary expenses.” Furthermore, it is a discretionary authoritythat is determined on a case by case basis and requires the court to consider both the NCP’s and CP’s financial circumstances as well asthe pre-separation spending patterns prior to making an order. [146] It is easy to discern, in my view, the high degree of congruence between “joint financial obligation” and “relative ability” withthe factors that s 7 directs a court to consider.

Section 7 comfortably falls within ambit of s 26.1(2). Furthermore, when a court orders s7 expenses, the payment of same is generally contingent upon the production of receipts by the CP, thereby ensuring that the costs arerelated to the children and are actually incurred. They are real expenses, not estimates.

The NCP has the ability to raise concerns aboutthe reasonableness and necessity of the expenses and focus the court on the amount they are required to pay pursuant to s 3. [147] Given that s 7 is discretionary and requires consideration of factors directly related to “relative means” and “joint financialobligation,” I am not prepared to find that it represents “double dipping.” More importantly, I am not persuaded that the inclusion of s 7represents a “break in logic” or an “attempt to reverse engineer an outcome” that would lead me to determine that the GIC actedunreasonably in including s 7.

It was open to GIC to create a generous and flexible approach to the provision of child support. Note 5 of

Schedule 1 in the Guidelines [148] Note 5 reads as follows: The amounts in the table are based on economic studies of average spending on children in families at different income levels in Canada.They are calculated on the basis that child support payments are no longer taxable in the hands of the receiving parent and no longerdeductible by the paying parent. They are calculated using a mathematical formula and generated by a computer program. [149] Mr. Auer argues that this Footnote in the Guidelines is inaccurate and misleading. Mr.

Auer correctly points out that the tableamounts were not derived from studies that focussed on the average spending on children in families at different income levels. Asdiscussed above in this Reasons – under the subheading titled “Committee’s Recommendation” – the Committee’s report reveals that itrelied upon a report that focussed on low-income cut-offs not a dedicated study regarding average spending on children.

TheCommittee’s report, at page 60, states: This paper presented the Statistics Canada position that econometric research could not be relied on to come up with any definitiveequivalence scale because of the difficult nature of the problem at both the theoretical and empirical levels.

But the paper also proposedthe “40/30” scale as a set of reasonable round numbers derived from empirical research and the public consultation process. [150] The actual 1989 paper that was relied upon by the Committee was not in evidence before me. [151] The AGC acknowledged that this footnote could have been clearer and argued that the tables are based, in part, on empiricalresearch. I accept Mr. Auer’s position that the footnote does not leave a reader with an accurate understanding of the methodologyemployed to arrive at the table amounts in

Schedule 1. [152] The misleading nature of this Footnote is a relevant consideration in determining whether the GIC acted reasonably inpromulgating the Guidelines. However, in my view, the more critical issue is the reasonableness of the GIC decision to adopt theCommittee’s recommendation rather than an error in a footnote. Determining the reasonableness of the GIC’s decision requires me toconsider the entirety of the Guidelines, not just one

section or a footnote in isolation. Based upon the statements made byParliamentarians and Senators, it is apparent that the Guidelines were based upon the recommendations of the Committee. TheCommittee was clear in how it arrived at its recommendation. The inclusion of one inaccurate statement in a footnote does not, in myopinion, materially affect the determination of whether the Guidelines were authorized by the Divorce Act.

Other Judicial Consideration of the Guidelines [153] A similar conclusion regarding the vires of the Guidelines was reached by Justice Turnbull in the decision of Premi v Khodeir(2009), (ON SC), 73 RFL (6th) 292, [2009] OJ No 3365 (ONSC) [Khodeir]. Mr. Auer submits that the decision iswrongly decided for a number of reasons including:

a) It presumes that table amounts are based upon economic studies of average spending on children;

b) Reliance on quotations from legislators; and

c) Acceptance of the objectives set out in

section 1of the Guidelines themselves. [ 154 ] Mr. Auer correctly points out that this decision is not binding upon me. I have already addressed Item “a,” and here note that Justice Turnbull did not rely solely upon the wording in Footnote 5 of

Schedule 1 of the Guidelines . [ 155 ]

Section 1 of the Guidelines sets out the objectives of the Guidelines . I accept Mr. Auer’s argument that a reviewing court should not blindly accept that because the objectives mirror, in part, the wording of the statutory grant of authority that is sufficient to conclude that the subordinate legislation is authorized. However, the objectives should be considered, and the principles of statutory

interpretation further suggest that the language of a statute be read so as to best reflect its stated objectives. Moreover, Katz reminds us that regulations are presumed valid. Justice Turnbull’s reasoning, in some regards, is similar to mine: Khodeir at para 69 . [ 156 ] I rely upon some of the same quotations from legislators as Justice Turnbull. I reject the notion that consideration of the statements of legislators is inappropriate. The intention of Parliament is a relevant consideration when undertaking statutory

interpretation. Vires review focuses largely on statutory

interpretation. Transparency [ 157 ] Mr. Auer complains that the Guidelines are not transparent and the principles and assumptions that underlie them are difficult to understand. I agree that the assumptions and technical calculations that underlie the Guidelines are complex and aspects of them are relatively difficult to understand. This complexity has very little to do with the validity of the Guidelines themselves. [ 158 ] However, I do not accept Mr. Auer’s submission that there is a lack of transparency.

An interested citizen can review many of the same documents that I have reviewed in my decision if they wish to gain greater insight into Guidelines . The Technical Report [26] that was released in December of 1997 offers a comprehensive explanation regarding the table amounts in the Guidelines . Many of the key documents in the judicial review are referenced in that report. Conclusion [ 159 ] At paragraph 79 I identified the specific arguments raised by Mr. Auer that I would address. I reiterate my finding that the majority of the issues raised by Mr.

Auer fall outside the scope of a vires review as they seek to impugn the GIC’s policy decisions and ignore the broad discretion that the GIC enjoys when enacting regulations pursuant to a broad statutory grant.

In addition, I note that the following factors, based upon my review of the evidence before me, further support my global conclusion that the GIC’s decision to promulgate the Guidelines was reasonable: • The GIC strove to ensure a balance of joint parental responsibilities for child support as prescribed by the Divorce Act – The Guidelines do not exclude the CP or NCP from parental responsibilities for child support; • While s 3 sets presumptive amounts, the Guidelines , as a whole, vest significant discretion in courts; • While there was no Certified Record of Proceedings of what was before the GIC the legislative debates and records that the parties’ relied upon all indicate a goal of joint financial responsibility.

Furthermore, it appears that the GIC relied upon the FPT Committee’s in-depth research and analysis; • The legislative debates reveal an awareness of the NCP’s and CP’s concerns and the needs of children; • There is no evidence that the GIC acted arbitrarily; and • The Divorce Act did not prescribe a specific formula that was ignored or breached by the GIC. VII. Disposition [ 160 ] For the reasons set out above, I dismiss Mr.

Auer’s Application to have the Guidelines held ultra vires the Divorce Act . [ 161 ] If the parties wish to speak to costs, they may make arrangements to speak with me within 30 days of the issue of this judgment. Heard on the 2 nd day of December to the 4 th day of December, 2020. Dated at the City of Edmonton, Alberta this 11 th day of May, 2021.

T.G. Rothwell J.C.Q.B.A. Appearances: Laura Warner Jensen Shawa Solomon Duguid Hawkes LLP for the Applicant, Roland Auer None for the Respondent, Aysel Auer Cameron G Regehr / Tessa la Bastide for the Attorney General of Canada