2013 QCCA 15, 2013 QCCA 15

Unofficial English Translation Droit de la famille — 139 2013 QCCA 15 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021799-119 (500-12-284948-068) (500-12-265489-025) (500-12-290726-078) (500-12-296274-081) (500-12-281162-051) (505-12-030478-062) DATE: January 11 th , 2013 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. NICHOLAS KASIRER, J.A. JE AN BOUCHARD, J.A. H. C., F. K., C. B., M. M., G. T., E. G. APPELLANTS / INCIDENTAL RESPONDENTS – Plaintiffs v. P. N. RESPONDENT / INCIDENTAL APPELLANT – Defendant and C. J., R. S., M. F., M. A., N. G.

RESPONDENTS – Defendants and ATTORNEY GENERAL OF CANADA IMPLEADED THIRD PARTY / INCIDENTAL APPELLANT – Intervener and ATTORNEY GENERAL OF QUEBEC INTERVENER / INCIDENTAL APPELLANT – Intervener JUDGMENT * [ 1 ] The issue in this appeal is whether the Order Designating the Province of Quebec for the Purposes of the Definition “applicable guidelines” in Subsection 2(1) of the Divorce Act [1] ("Order in Council") violates subsection 15(1) of the Canadian Charter of Rights and Freedoms [2] (“ Charter ”). [ 2 ] In a judgment on a Motion for Declaratory Judgment dated May 26, 2011, the Honourable Madam Justice Diane Marcelin declared that the Quebec child support guidelines are discriminatory but decided that the Order in Council should not be invalidated because it is justified under s. 1 of the Charter . [ 3 ] Several parties have appealed the judgment.

The appellants ask the Court to declare that the Order in Council is not justified under s. 1 of the Charter , while the impleaded Attorney General of Canada and the intervener Attorney General of Quebec, who are incidental appellants in this appeal, seek a declaration that the Order in Council does not contravene subsection 15(1) of the Charter . Finally, the respondent P. N., who actively contested the motion at trial, seeks the same conclusions as the attorneys general.

1. Background [ 4 ] This

section will address three separate aspects. First, the Court will summarize the situation of the appellants. This will be followed by a brief overview of the facts and the legislative context leading to the adoption of the Order in Council. Finally, there will be a comparison between the most important features of the federal guidelines and Quebec guidelines. 1.1 - The situation of the appellants [ 5 ] The six appellants were married to spouses with substantial incomes, ranging between $190,000 and $4 million a year.

They claim that their financial situation has been difficult following the breakdown of their marriages, even though they receive support payments for the children born of the marriage and, in some cases, spousal support.

They observe that if the Federal Child Support Guidelines [3] ("federal guidelines") applied to their cases, they would receive more generous child support payments than the payments they currently receive under the Regulation respecting the determination of child support payments [4] (“Quebec guidelines”). [ 6 ] The following table provides a general overview of the situation of the parties at the time of the hearing for the Motion for Declaratory Judgment before the Superior Court in June of 2010: Case Number of children and type of custody Annual income of parties Monthly child support received under Quebec guidelines Monthly child support that would be received under the federal guidelines H.C. v.

P.N. (Aline) • 3 minor children • Aline has full custody of the three children; P. N. has extended access rights (110 days) • Aline has an interest income of approximately $27,000. • P. N.'s income varies between $1.2 and $1.9 million. • $8,100 [5] • Approximately $20,000 F.K. v. C.J. (Tess) • 3 children (2 dependent children of the age of majority) • The eldest boy lives with his father, the eldest girl with her mother, and the youngest girl is in joint custody. • Tess is currently unemployed and is a student. • C. J.'s income varies between $500,000 and $600,000. • $2,105.62 [6] • $6,668 C.B. v. R.

S. (Claire) • 2 minor children • Claire has custody of the children • Claire's income varies between $47,000 and $50,000. • R. S.'s income is approximately $190,000. • $1,500 • $2,349 M.M. v. M.F. (Angelina) • 2 minor children • Angelina has custody of the children • Angelina has no income; her status prevents her from working here • M. F.'s income is approximately US$210,000. • $1,883.60 • $3,211 G.T. v. M.A. (Nicole) • 2 minor children • The children are in joint custody • Nicole has hardly any income • M. A.'s approximate income ranges between $1.2 and $4 million. • $2,656 [7] • Between $10,000 and $13,000.

E.L. v. N.G. (Anna) • 5 children (2 of which are dependent children of the age of majority) • Anna has custody of the children • Anna's income is below $25,000 [8] • N. G.'s income is approximately $1 million. • $5,000 in addition to $5,600 for specific expenses [9] • Approximately $20,000 [ 7 ] This is the context in which the appellants brought their declaratory action.

They argued that the Order in Council discriminates against their children because, if one of the parties lived outside Quebec, the federal guidelines would apply and, as the above table demonstrates, their child support payments would be significantly higher than those awarded. 1.2 – The facts and legislative context leading to the Order [ 8 ] In the early 1990s, the key players in the area of family law observed a lack of predictability in the assessment of judge-ordered child support. A Federal/Provincial/Territorial Family Law Committee (the "Committee") was established to study the issue of child support.

The Quebec government began taking

part in the work of the Committee in 1991, although it had already started studying the issue on its own. [10] [ 9 ] In its 1991 report, the Committee pointed out various problems in the determination of child support, highlighting in particular the underestimation of the costs required to meet the needs of children, the lack of uniformity of support orders, and the unfairness of the system then in force. [11] The Committee identified three potential approaches to these problems: (1) maintain the current situation; (2) maintain the current situation while permitting the courts to take child-related expenses into account to help assess their needs; and (3) enact child support guidelines. [12] [ 10 ] In 1995, the Committee tabled a report in which it made numerous recommendations . [13] Among them, it urged the adoption of statutory tables determining the amount of child support.

The Quebec Minister of Justice, however, expressed a reservation concerning the appropriateness of seeking a single legislative solution applicable to all support orders in Canada: [14] General reserve to the report from the Province of Québec The Minisère de la justice du Québec took

part in the work of the Federal/Provincial/Territorial Family Law Committee's which led to the drafting of the report on child support. From the outset, we have expressed concerns as to the advisability of seeking a single legislative solution applicable to all child support orders in Canada. Even before a federal-provincial task force charged with studying this matter was formed, an interdepartmental committee had been set up in Québec to examine all aspects of this matter from the standpoint of provincial issues in the areas of justice income security and family policy .

Even if the administrative and financial impact studies currently being conducted prove to be positive and no other obstacles stand in the way of introducing a child support formula, we believe that, particularly because of the impact that such a formula would have on the administration of justice in each province, it would be appropriate to let the provinces choose the support formula that is best suited to the principles and rules they consider appropriate, and to let them decide on the modalities for the application of such a formula.

This is the position that was clearly expressed by Québec's Minister of Justice at a recent meeting with his counterparts from the rest of Canada.

Only in this way will it be possible to adequately meet the particular needs of the various jurisdictions while taking into account the principles and values on which their social and family policies are founded , their income security programs, the interests of their citizens and the resources at their disposal. [Emphasis added] [ 11 ] In answer to the wishes expressed by the Quebec Minister of Justice, the Committee proposed incorporating into the Divorce Act [15] (the "Act") a mechanism allowing the provinces to adopt a different formula than that employed by the federal government, which formula would then be applied when determining child support under the Act (a federal power under subsection 91(26) of the Constitution Act, 1867 ) [16] as well as under the Civil Code of Québec for children born of parents in a de facto union (a power falling within provincial jurisdiction under subsection 92(13) of the Constitution Act, 1867 ) . [17] This approach favoured the uniformity of support payments for all children of parents living in a given province, regardless of their matrimonial status. [ 12 ] In 1997, Parliament enacted amendments to the Act permitting such a mechanism.

Subsection 26.1(1) of the Act authorizes the Governor in Council of Canada to establish child support guidelines in cases of divorce: [18]

26.1

(1) Le gouverneur en conseil peut établir des lignes directrices à l’égard des ordonnances pour les aliments des enfants, notamment pour :

a) régir le mode de détermination du montant des ordonnances pour les aliments des enfants;

b) régir les cas où le tribunal peut exercer son pouvoir discrétionnaire lorsqu’il rend des ordonnances pour les aliments des enfants;

c) autoriser le tribunal à exiger que le montant de l’ordonnance pour les aliments d’un enfant soit payable sous forme de capital ou de pension, ou des deux;

d) autoriser le tribunal à exiger que le montant de l’ordonnance pour les aliments d’un enfant soit versé ou garanti, ou versé et garanti, selon les modalités prévues par l’ordonnance;

e) régir les changements de situation au

titre desquels les ordonnances modificatives des ordonnances alimentaires au profit d’un enfant peuvent être rendues;

f) régir la détermination du revenu pour l’application des lignes directrices;

g) autoriser le tribunal à attribuer un revenu pour l’application des lignes directrices;

h) régir la communication de renseignements sur le revenu et prévoir les sanctions afférentes à la non-communication de tels renseignements. 26.1

(1) The Governor in Council may establish guidelines respecting the making of 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 income information and providing for sanctions when that information is not provided. [ 13 ] Subsections 2(1) and 2(5) of the Act afford provincial legislatures the latitude to enact guidelines to apply in place of the federal guidelines. This option is implemented through an Order of the Governor in Council designating a province for the purposes of the definition of "applicable guidelines" under certain conditions set out in the relevant provisions. The Order thus adopted incorporates provincial legislation into the federal law by reference: [19]

(1) Les définitions qui suivent s’appliquent à la présente loi. ... « lignes directrices applicables » S’entend :

a) dans le cas où les époux ou les ex-époux résident habituellement, à la date à laquelle la demande d’ordonnance alimentaire au profit d’un enfant ou la demande modificative de celle- ci est présentée ou à la date à laquelle le nouveau montant de l’ordonnance alimentaire au profit d’un enfant doit être fixée sous le régime de l’article 25.1, dans la même province — qui est désignée par un décret pris en vertu du paragraphe (5) — , des textes législatifs de celle- ci précisés dans le décret;

b) dans les autres cas, des lignes directrices fédérales sur les pensions alimentaires pour enfants. « lignes directrices fédérales sur les pensions alimentaires pour enfants » Les lignes directrices établies en vertu de l’article 26.1. ...

(5) Le gouverneur en conseil peut, par décret, désigner une province pour l’application de la définition de « lignes directrices applicables » au paragraphe (1) si la province a établi, relativement aux aliments pour enfants, des lignes directrices complètes qui traitent des questions visées à l’article 26.1. Le décret mentionne les textes législatifs qui constituent les lignes directrices de la province. 2.

(1) In this Act , … “applicable guidelines” « lignes directrices applicables » “applicable guidelines” means (

a) where both spouses or former spouses are ordinarily resident in the same province at the time an application for a child support order or a variation order in respect of a child support order is made, or the amount of a child support order is to be recalculated pursuant to

section 25.1, and that province has been designated by an order made under subsection (5), the laws of the province specified in the order, and (

b) in any other case, the Federal Child Support Guidelines ; …

(5) The Governor in Council may, by order, designate a province for the purposes of the definition “applicable guidelines” in subsection (1) if the laws of the province establish comprehensive guidelines for the determination of child support that deal with the matters referred to in

section 26.1.

The order shall specify the laws of the province that constitute the guidelines of the province. [ 14 ] On April 8, 1997, the Governor in Council of Canada enacted the federal guidelines. [20] [ 15 ] The reaction of the Canadian provinces was varied. [ 16 ] In the specific case of Quebec, the Governor in Council of Canada acquiesced to its request for designation on April 22, 1997 and, having concluded that Quebec’s guidelines met the criteria for designation set out in subsection 26.1(1) of the Act , designated the province by Order in Council for the purposes of the definition of the guidelines. [21] The Order came into force on May 1, 1997.

The following is the Regulatory Impact Assessment Statement accompanying the Order in Council: [22] The laws of Quebec, constituting Quebec's guidelines meet the requirements for the designation.

Those requirements are set out in subsection 26.1(1) of the Divorce Act : • The Act to amend the Civil Code of Québec and the Code of Civil Procedure as regards the determination of child support payments (Bill 68) and the Regulation respecting the determination of child support payments (guidelines) including the Child Support Determination Form provide for ways to determine child support. • Several provisions throughout the different laws constituting Quebec's guidelines deal with circumstances in which judiciary may exercise its discretion such as for cases of undue hardship or where there are special expenses. • [Article] 589 of the Civil Code of Québec authorizes a court to require that the amount payable under an order for child support be paid in periodic payments, in lump sum or in a lump sum and periodic payments. • [Article] 591 of the Civil Code of Québec authorizes 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. • [Article] 594 of the Civil Code of Québec provides circumstances that give rise to the making of a variation order in respect of a child support order. • The Regulation respecting the determination of child support payments provides for ways to determine income pursuant to the application of Quebec's guidelines.

• [Article] 825.12 of Bill 68, amending the Code of Civil Procedure , specifically empowers courts to attribute income. • Quebec's Bill 68 introduces [Articles] 825.9 to 825.12 to the Code of Civil Procedure which deal with the production of income and provides for sanctions in cases of default. • Quebec's model is based on the principle that parents have a joint financial obligation to maintain their children in accordance with their relative abilities to contribute to the performance of that obligation. [ 17 ] More specifically, under

section 2 of the Order in Council, the following legislative instruments constitute the complete guidelines for the province of Quebec, and they apply to the determination of child support in situations of divorce and in cases falling under provincial jurisdiction:

a) la Loi modifiant le Code civil du Québec et le Code de procédure civile relativement à la fixation des pensions alimentaires pour enfants ; [23]

b) le Règlement sur la fixation des pensions alimentaires pour enfants; [24]

c) le

Titre Troisième du Livre Deuxième du Code civil du Québec; [25]

d) le

Chapitre VI.1 du

Titre IV du Livre V du Code de procédure civile . [26] (

a) An Act to amend the Civil Code of Québec and the Code of Civil Procedure as regards the determination of child support payments ; (

b) the Regulation respecting the determination of child support payments; (

c) Title Three of Book Two of the Civil Code of Quebec ; (

d) Chapter VI.1 of Title IV of Book V of the Code of Civil Procedure . [ 18 ] It should be pointed out that the Province of Quebec’s formal petition for designation to the Governor in Council represents the outcome of a legislative consultation process at the Quebec National Assembly, which went through the following stages: filing of a consultation document entitled " Modèle de fixation de pension alimentaire pour enfants " [ translation]: Model child support guidelines] on June 19, 1996, at the National Assembly; private consultations and public hearings of the Commission permanente des affaires sociales de l'Assemblée nationale [ translation: National Assembly standing committee on social affairs] on August 28 and 29 and September 3, 1996; presentation to the Council of Ministers of a brief concerning the Act to amend the Civil Code of Québec and the Code of Civil Procedure as regards the determination of child support payments on November 14, 1996; the enactment of this statute on December 20, 1996; [27] and the publication in the Gazette officielle du Québec of the proposed Regulation respecting the determination of child support payments on April 1, 1997. [ 19 ] Three other provinces asked for a designation under sub-section 2(5) of the Act and enacted their own guidelines in accordance with the designation process.

These provinces were Manitoba, New Brunswick, and Prince Edward Island. Like Quebec, Prince Edward Island established its own tables, different from the federal guidelines but more generous than the latter. In 2006, Prince Edward Island opted for the federal guidelines and its designation was accordingly revoked.

The other two provinces used the amounts retained in the federal guidelines. [ 20 ] With regard to matters falling under provincial jurisdiction, the legislatures of Ontario, Saskatchewan, Newfoundland and Labrador, Nova Scotia, British Columbia, Northwest Territories, Nunavut, and Yukon adopted guidelines similar to the federal ones, thus creating uniformity with the guidelines applicable in cases of divorce. [28] Later, in 2005, Alberta also chose to enact provincial guidelines applicable to matters within provincial jurisdiction that were similar to the federal guidelines applicable in cases of divorce. 1.3 - Comparison of federal and provincial guidelines [ 21 ] The factors that led to the enactment of the federal and provincial guidelines were the unpredictability of child support orders, the disparity in the amounts awarded, and the inadequacy of child support awards. [ 22 ] The stated objectives of each of the systems are similar, as may be observed in the following table: [29] Objectives QUEBEC FEDERAL

- To affirm the joint responsibility of parents toward their children - To distribute responsibility for the financial support of children between both parents according to their respective resources - To consider the payor's support obligation as a priority over expenses that exceed his or her own essential needs - To ensure that children's needs are covered according to their parents’ capacity to pay - To recognize, to the degree possible, equality of treatment of all children born of different kinds of unions with regard to their right to support - To maintain, to the degree possible, an incentive for disadvantaged parents to fulfill their child support obligations - To establish fair standards of child support to ensure that children continue to benefit from the financial means of both spouses after separation - T o reduce conflict and tension between spouses by making the calculation of child support orders more objective ; - To improve the efficiency of legal proceedings by providing the courts and spouses with guidance in the determination of the amount of child support awards and by encouraging settlement agreements - To ensure uniform treatment of spouses and children who are in similar circumstances (s. 1) [ 23 ] The federal and provincial guidelines were designed to ensure the predictability of support payments, while also preserving the flexibility of the system.

According to Professor Goubau, [30] the two systems have the following similarities: 1. by taking as their starting point the concept of income, which makes it possible in “ordinary,” or the vast majority of situations, depending on the number of children, to reach a contribution amount contained in the pre-established tables; [31] 2. by making it possible to “increase” this amount later to include certain special expenses that are not covered by the tables they make it possible to “increase” this amount to take into account special expenses that are not contemplated in the tables; [32] 3. by authorizing the court to deviate from the table amounts when a party experiences undue hardship; and [33] 4. by providing for cases where the court can exercise greater discretion, and even bypass the system, to return to the classic test of assessing the means and needs of the parties. [34] [Citations added by the Court.] [ 24 ] Professor Goubau [35] notes more specifically that both systems permit the exercise of judicial discretion in the case of: 1. children who have reached the age of majority; [36] 2. additional expenses (which are defined exhaustively); 3. undue hardship (including indebtedness for family reasons, the presence of major expenses in exercising access rights to children who are beneficiaries under the support order, and the responsibility of other support obligations); and 4. special treatment for high incomes. [37] [Citations added by the Court] [ 25 ] The two systems also have differences, the most notable of which can be summarized as follows. [ 26 ] The Quebec guidelines take into account the income of both parents, while the federal guidelines consider only the income of the debtor parent, except when it comes to special expenses (subsection 7(2)).

As a consequence of this difference, "the income of the receiving parent will have an impact, sometimes considerable, on the amount of the support under the Quebec regulations, whereas, under the federal guidelines, this income has no impact on the basic amount provided for in the tables". [38] [ 27 ] Under the Quebec guidelines, the time the child spends with the custodial parent also has an impact on support payments.

In the case of joint custody, the impact is even more significant. [ 28 ] The specific factors relevant to assessing undue hardship are also different under the two systems, but only the federal guidelines provide a mechanism for comparing the standard of living of each household. Professor Goubau draws the following conclusion: “Consequently, in the Quebec system, each parent, even the parent with the higher standard of living, can argue undue hardship”. [39]

[ 29 ] Both systems apply necessity and reasonableness tests when awarding additional expenses. In addition to these two factors, the federal guidelines also consider the family's lifestyle. [40] 2. The judgment under appeal [ 30 ] The first judge approached the analysis of the constitutional validity of the Order by applying the test under subsection 15(1) of the Charter .

She determined the comparator group to be [ translation ] "[m]others who reside in Quebec and have become single parents following divorce proceedings and mothers in the same situation residing elsewhere in Canada" [41] [ 31 ] She pointed out that the appellants must establish a distinction based on an analogous ground and demonstrate that this distinction has a discriminatory effect or creates a disadvantage by perpetuating prejudice against the targeted group. [ 32 ] The judge first considered whether the Quebec guidelines create a distinction between divorced or divorcing single mothers in Quebec and mothers in the same situation in other provinces. [42] She correctly concluded that the Quebec guidelines create a distinction, for reasons that the Court will summarize thus: [43] - In many cases, the children of such women receive lower support payments than they would under the federal guidelines. - The Quebec guidelines impose a lower standard of on-going disclosure on the support debtor than do the federal guidelines. - The Quebec guidelines result in a significant reduction of child support in the case of joint custody. - The calculation under the Quebec guidelines is more complex than under the federal guidelines, frequently requiring the use of computer programs. - Unlike the federal guidelines, the Quebec guidelines result in the income of the custodial parent lowering the obligation of the support debtor. [ 33 ] The judge of first instance went on to point out that the Supreme Court has in the past acknowledged that place of residence may constitute an analogous ground for aboriginal persons since they continue to suffer historical prejudice based on immutable characteristics. [44] She expressed the opinion that this was also the case for women in general, and that this prejudice is exacerbated in the case of single mothers. [45] [ 34 ] The first judge concluded that, for divorced or divorcing single mothers, a distinction based on province of residence constitutes an analogous ground under s. 15(1) of the Charter . [46] After considering the contextual factors identified by the Supreme Court in Law v.

Canada (Minister of Employment and Immigration) , [47] she found that the Quebec guidelines were discriminatory, for reasons that may be summarized as follows: [48] - The group under analysis is a historically disadvantaged group. - The support needs of mothers and their children do not differ fundamentally from one province to another. - The obligation to provide support is an important social objective. - The very structure of the Quebec guidelines (income of both parents, the impact of custodial time, and tables that are less generous in a great many cases) has an "adverse" and discriminatory effect on single mothers. [ 35 ] The first judge further acknowledged that a statute may apply differently from one province to another.

In her view, however, the principle of cooperative federalism does not rule out a constitutional challenge based on subsection 15(1) of the Charter . Discrimination against divorced or divorcing mothers in the Quebec guidelines would therefore not be justified by invoking cooperative federalism. [ 36 ] However, applying the framework followed by the Supreme Court in R. v. Oakes , [49] the first judge found that the Order in Council that incorporates the Quebec guidelines into the federal legislation can be justified in a free and democratic society pursuant to

section 1 of the Charter . In her view, the enactment of the child support guidelines meets a pressing and substantial objective. She found that there is a rational connection between the objective of putting an end to the uncertainty surrounding child support awards and the flexibility sought by the federal government under cooperative federalism, such as to allow some provinces to adopt their own guidelines.

As for the notion of proportionality between the effect of the Order in Council and the legislative objective, she found that the objective of standardizing support payments within a same province had been achieved. 3 – The issues [ 37 ] The main appeal and incidental appeals raise the following three questions: 1. Did the judge err in dismissing P. N.'s objection to the evidence? 2. Did she err in finding that the Order in Council infringed subsection 15(1) of the Charter ? 3. Did she err in finding that this infringement was justified under

section 1 of the Charter ? [ 38 ] Given the Court's conclusion, it will not be necessary to deal with the third issue. 4 – Analysis 4.1 The objections to the evidence

[ 39 ] Before considering the constitutional issues, it would be useful to dispose of one of the grounds raised by P. N., which concerns the admissibility of some of the evidence submitted by the appellants, and in particular by H. C., his ex-wife, whom the trial judge referred to as Aline. According to the respondent P. N., the judge erred in considering Aline's testimony regarding a decrease in her standard of living since the divorce, as this issue had already been settled in the divorce proceedings. In the view of P. N., this finding may lead to contradictory judgments. [ 40 ] The trial judge dealt with P.

N.'s objections to the evidence in paragraphs 70 to 74 of her judgment. [ translation ] [70] Aline's ex-husband has, from the outset, objected to all of the evidence in this file. In his view, the evidence was brought before another judge during divorce proceedings and admitting it here could result in contradictory judgments. [71] These objections were taken under advisement. He repeated them during his oral argument, however, and the undersigned would like to dispose of them immediately. [72] According to the Supreme Court of Canada, the

interpretation of subsection 15(1) of the Charter must go beyond the merely formal and restrictive. In Andrews v. Law Society of British Columbia [50] , McIntyre J. stated that equality issues must be considered in context and in light of the reality of the circumstances. [73] With this in mind, the undersigned has allowed the claimants to bring evidence of their circumstances and to place the proceedings in context. Moreover, given the nature of the proceedings, there is no risk of a contradictory judgment.

The respondent's objections to the evidence are therefore dismissed. [74] What the uncontradicted evidence brought before the undersigned in fact reveals is that these women's lives were shaken up after their marriage broke down, and that unless they marry another wealthy spouse, they will never regain the standard of living to which they were accustomed during the marriage. [ 41 ] The first judge allowed the appellants to testify on the impact of the support payments on their children and themselves in the context of a discrimination claim under subsection 15(1) of the Charter .

Even though similar facts might have been proven in other proceedings, the purpose of such proceedings would have differed vastly. [ 42 ] There was no risk of contradictory judgments because the purpose of the each claim was completely different. When the ruling on the constitutional validity of the Order in Council was made, the judgment on P. N. and H. C.’s divorce and on corollary relief had already been rendered. [51] The impact of the Motion for Declaratory Judgment resides in the issue of applying the federal guidelines as opposed to the Quebec guidelines.

These proceedings will not otherwise impact on the judgment rendered in the divorce case between those parties. [ 43 ] The first judge's ruling on the objections was thus justified in the circumstances at hand, first because the subsection 15(1) analysis ought not to take place in a factual vacuum, and secondly, because there was no real risk of contradictory judgments. 4.2 – Discrimination under subsection 15(1) of the Charter [ 44 ] The starting point for analyzing any discrimination claim under subsection 15(1) of the Charter is the two-stage test developed by the Supreme Court in R. v.

Kapp [52] and endorsed a few years later in Withler v. Canada (Attorney General) : [53]

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? [ 45 ] Applied to the instant case, this test invites the following observations. 4.2.1 - A distinction based on an enumerated or analogous ground [ 46 ] There is no doubt that the Quebec guidelines, which reflect their own philosophy while remaining consistent with the criteria in subsection 26.1(1) of the Divorce Act , differ from the federal guidelines.

The trial judge found that this creates a disadvantage for divorced or divorcing single mothers living in Quebec compared with mothers in the same situation living elsewhere in Canada : [ translation ] [229] What is to be considered, therefore, is whether the Quebec guidelines create a distinction between divorced or divorcing single mothers and mothers in the same situation in other provinces. [230] We have seen that, in many cases, the children of these women are awarded, due to their mother's place of residence, lower support payments than children whose mothers reside elsewhere in Canada.

Moreover, under the law and the provincial guidelines, the support payer, unless otherwise ordered, has little obligation to disclose regularly other than the requirement to fill out a form, since control of that information is in many cases arbitrary. [231] The same is true with regard to income. In addition, the element of time spent with the children that is factored into the Quebec guidelines frequently increases the difference between the amounts payable under the different guidelines. In the case of shared custody, this leads to a drastic reduction in Quebec support payments.

The Quebec procedure is more complex and, given all the factors that must be considered, a computer program is often used to calculate the amount. [232] It should be noted that it is not necessary for all the members of a given group to suffer prejudice, but that a large number of mothers are affected by the fact that the pensions are lower and are frequently slashed even more by the time factor under the Quebec

tables. [233] It should also be pointed out that the fact that the debtor's income is taken into account creates an additional distinction.

As noted above, it contributes to maintaining many women, members of the comparative group, in a situation of significant loss of income and in a state of dependence because an important and direct effect of this factor is to decrease the obligation of the support payer, which is not the case under the federal guidelines. [234] Although the Quebec guidelines allow for derogation from the strict application of the tables, the courts generally interpret this possibility restrictively due to the presumption of validity that attaches to both tables. [235] It is clear that the statute creates a distinction between divorced or divorcing single mothers residing in Quebec and mothers in the same situation residing elsewhere in Canada. [ 47 ] The Attorney General of Quebec and the respondent P.

N., citing examples in support of their position, are able to put the differences between the two schemes into perspective, and indeed neither ought to be considered in the abstract. Be that as it may, the first stage of the test set out by the Supreme Court requires that it first be determined whether the distinction is based on an enumerated or analogous ground under subsection 15(1) of the Charter and, in our opinion, the appellants are unable to clear this hurdle. 4.2.2 - Place of residence as analogous ground [ 48 ] For ease of reference, here is the text of subsection 15(1) of the Charter : 15.

(1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques. 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 49 ] On its face, subsection 15(1) clearly does not include place of residence as an enumerated ground.

In the present case, does it constitute an analogous ground as recognized by the Supreme Court in the case of citizenship, [54] marital status, [55] or sexual orientation? [56] Nothing could be less certain. [ 50 ] Before answering the question, the Court considers it worth noting that, in their Motion for Declaratory Judgment, the appellants allege that the Quebec guidelines treat their children unfavourably compared to children of divorced parents living in the rest of Canada.

The trial judge identified divorced single mothers living in Quebec as the group suffering from discrimination. [57] At the hearing before this Court, it was the mother-child "dyad" that was advanced as the central element of analysis under subsection 15(1) of the Charter .

Pressed to clarify this issue, however, counsel for the appellants conceded that the analysis should focus instead on the situation of custodial parents, without regard to their sex, as an economic unit that is disadvantaged by the Quebec guidelines. [ 51 ] In the view of the Court, it makes no difference which group is identified as the comparator group.

Insofar as the ground of distinction – i.e., place of residence – remains the same, one is inevitably led back to the point of departure: Is this an analogous ground under subsection 15(1) of the Charter ? [ 52 ] The courts have consistently answered this question in the negative, although the Supreme Court did so cautiously in R. v. Turpin , [58] stating in obiter dictum that the province of residence might constitute a ground for discrimination in certain specific circumstances.

In that case, the accused, charged with murder in Ontario, wished to waive the right to a trial by jury and to be heard by a judge sitting alone, a possibility that was only open in Alberta under the provisions of the Criminal Code in force at the time. The Supreme Court, per Wilson J., dismissed their challenge under subsection 15(1) , stating that it would go beyond the true purpose of that provision "to characterize persons accused of one of the crimes listed in

section 427 of the Criminal Code in all the provinces except Alberta as members of a 'discrete and insular minority'". [59] Regarding her reservation, Wilson J. wrote the following: [60] I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination. I simply say that it is not so here.

Persons resident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Canadian society within the contemplation of s. 15. [ 53 ] This obiter dictum , written nearly a quarter of a century ago, has not been referred to in case law because, since Turpin , the Supreme Court has consistently refused to recognize place of residence as an analogous ground of discrimination. [ 54 ] The appellants invoke Corbière v. Canada (Minister of Indian and Northern Affairs Canada) [61] in support of their position.

They contend that the trial judge was right in finding that the Supreme Court has recognized place of residence as an analogous ground in that judgment. [62] They are mistaken on this point. [ 55 ] In Corbière , the issue was a subsection 15(1) challenge to a provision of the Indian Act [63] to the effect that only band members normally living on the reserve are qualified to vote in Band Council elections, thus depriving members living off-reserve of their right to vote.

The majority, per McLachlin and Bastarache JJ., made it clear one should not confuse place of residence and the status of off-reserve members, since the latter is a unique situation that in no way resembles that of other Canadians and their choice of residence. [64] On this point, they wrote: L’Heureux-Dubé J. ultimately concludes that “Aboriginality-residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground. We agree. L’Heureux-Dubé J.’s discussion makes clear that the distinction goes to a personal

characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship. Off-reserve Aboriginal band members can change their status to on-reserve band members only at great cost, if at all. Two brief comments on this new analogous ground are warranted. First, reserve status should not be confused with residence. Theordinary “residence” decisions faced by the average Canadians should not be confused with the profound decisions Aboriginal bandmembers make to live on or off their reserves, assuming choice is possible.

The reality of their situation is unique and complex. Thus nonew water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground. … [Emphasis added.] [56] A few years later, in 2003, the Supreme Court of Canada, in Siemens v. Manitoba (Attorney General),[65] again emphasized thelimited scope of the reasons in Corbière. The facts of that case are as follows: during a referendum in the town of Winkler, Manitoba, thecitizens voted in favour of prohibiting video lottery terminals throughout the municipality’s territory.

The provincial legislaturesubsequently enacted a statute authorizing municipalities to hold a referendum on the issue. That legislation also contained a specificprovision concerning the result of the referendum that had already been held in Winkler. The appellants, who operated in thatmunicipality an establishment where VLTs were allowed, challenged the validity of that specific provision of the statute. They arguedthat it was discriminatory in that the citizens of Winkler were being subjected to differential treatment compared to citizens livingelsewhere in Manitoba.

The Supreme Court rejected their arguments, following its decisions in previous cases, including Corbière:[66] There is no merit in this ground of appeal. First, although s. 16 of the VLT Act clearly makes a distinction between Winkler and othermunicipalities, it is implausible that residence in Winkler constitutes an analogous ground of discrimination. Residence was rejected asan analogous ground in both Haig, supra, and R. v. Turpin, (SCC), [1989] 1 S.C.R. 1296. Further, the majority inCorbière v.

Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, clearly stated that theanalogous ground recognized in that case was “Aboriginality-residence”, and that “no new water is charted, in the sense of findingresidence, in the generalized abstract, to be an analogous ground” (para. 15). … [Emphasis added.] [57] In the view of the Court, the Supreme Court, in Corbière, did not accept place of residence as an analogous ground undersubsection 15(1) of the Charter.

In that case, the nexus between Aboriginality and place of residence created a true dyad, wherein thegeographical aspect was inseparable from the immutability on which the distinction was based. But that is not the case here. Therefore,the trial judge erred in comparing the situation of divorced or divorcing single mothers in Quebec with that of mothers in the samesituation living elsewhere in Canada. [58] Admittedly, the freedom of divorced or divorcing single mothers to choose their place of residence as they wish is limited by theneed to ensure that the children remain near their father.

Such circumstances, however, have nothing to do with the immutable situationof off-reserve Aboriginal persons who "can change their status to on-reserve band members only at great cost, if at all".[67] [59] From the Supreme Court judgments discussed above, it is clear that place of residence has not been found to be an analogousground because, unlike race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, which are the groundsenumerated in subsection 15(1) of the Charter, it is not a "personal characteristic that is immutable or changeable only at unacceptablecost to personal identity".[68] [60] If we now consider province of residence, another argument – this one based on the federal nature of our constitution – can beraised to reject that as an analogous ground as well. [61] Canada being a federation, legislative jurisdiction is divided between the federal Parliament and the provincial legislatures.[69]Subsection 92(13) of the Constitution Act, 1867 confers on provinces the jurisdiction to legislate in relation to property and civil rights,which includes the primary jurisdiction over child support, regardless of the type of union of the parents.

Conversely, while the federalParliament may also legislate in respect of child support, its authority to do so derives from its jurisdiction over divorce under subsection91(26) of the Constitution Act, 1867.

This authority is incidental to its primary jurisdiction, however, and as a result, Parliament has nopower to legislate on support for children born outside of marriage.[70] [62] The Charter was not enacted in a vacuum and takes into account the constitutional reality of federalism, a political and legalresponse to the multiple realities that shape our country from coast to coast.[71] Constitutional provisions are meant to be interpreted inlight of one another, and subsection 15(1) of the Charter is no exception.

Thus, distinctions based on province of residence are not apriori suspect in terms of equality rights. It would be highly surprising, for example, for one province's minimum wage being lower thananother's to be considered a violation of subsection 15(1) of the Charter.[72] Can the same be true when, as is the case here, the federallaw is not uniform from one province to another in respect of alimentary support for children? [63] The case of Turpin,[73] discussed above, leads us to answer this question in the affirmative.

In that case, a Criminal Codeprovision requiring an accused charged with murder to stand trial before judge and jury, except in Alberta, withstood a constitutionalchallenge based on subsection 15(1) of the Charter. [64] In R. v.

S. (S.),[74] the Supreme Court took the same view in response to a challenge of the validity of a provision of the YoungOffenders Act[75] that authorized provinces to establish alternative measures programs for youths charged with criminal offences.Because no such program had been adopted in Ontario, a young offender charged with possession of stolen goods in that province allegedthat this omission violated subsection 15(1) of the Charter because he would have benefited from such a program had he been livingelsewhere in Canada.

The Supreme Court rejected his position, stating that, since the enactment of the Charter, our federal system hasbeen based on a compromise between two values that are often considered antithetical, namely, uniformity and diversity:[76] Obviously, the federal system of government itself demands that the values underlying s. 15(1) cannot be given unlimited scope. Thedivision of powers not only permits differential treatment based upon province of residence, it mandates and encourages geographicaldistinction.

There can be no question, then, that unequal treatment which stems solely from the exercise, by provincial legislators, of their

legitimate jurisdictional powers cannot be the subject of a s. 15(1) challenge on the basis only that it creates distinctions based uponprovince of residence. 15(1). As Wilson J. stated in Reference Re Bill 30,

An Act to Amend the Education Act (Ont.), (SCC), [1987] 1 S.C.R. 1148, at p. 1197. "[it] was never intended, in my opinion, that the Charter could be used to invalidate otherprovisions of the Constitution". To find otherwise would be to completely undermine the value of diversity which is at the foundation ofthe division of powers. [65] The same view was upheld by the Supreme Court in Haig v. Canada (Chief Electoral Officer),[77] a few years later.

ACanadian citizen who had recently moved to Quebec was prevented from voting in the Quebec referendum and in the federal referendumon proposed Constitutional amendments by residency requirements under both provincial and federal legislation. As L'Heureux-Dubé J.,writing for the majority, reiterated:[78] Clearly, in a federal system, province-based distinctions do not automatically give rise to a presumption of discrimination.

Section 15(1)of the Charter, while prohibiting discrimination, does not alter the division of powers between governments, nor does it require that allfederal legislation must always have uniform application to all provinces. It is worth emphasizing that, as Dickson C.J. commented in R.v. S. (S.), supra, at pp. 289-92, differential application of federal law in different provinces can be a legitimate means of promoting andadvancing the values of a federal system.

Differences between provinces are a rational part of the political reality in the federal process.Difference and discrimination are two different concepts and the presence of a difference will not automatically entail discrimination. [66] It is clear from this reasoning that the federal government, through the legislative mechanism of incorporation by referenceearlier described, chose to exercise its legislative jurisdiction over divorce by favouring an approach whereby all children living inQuebec receive the same support, regardless of the matrimonial status of their parents.

Not only is this choice constitutionally valid, itwas endorsed by the Supreme Court in D.B.S. v. S.R.G., L.J.W. v. T.A.R.; Henry v. Henry, Hiemstra v. Hiemstra:[79] The provincial power to regulate child support matters in contexts not involving divorce must therefore remain unfettered. While it isdesirable that the federal and provincial governments treat children of married and unmarried parents the same, this does not mean thatthe Guidelines should trump the legislative will of the provinces.

To the contrary, symmetry for married and unmarried parents can beachieved both ways: provinces may choose to adopt the federal regime, but Parliament may also decide to accept provincial solutions.Accordingly, the Divorce Act presently ensures consistency within the province by allowing certain provincial regimes to apply todivorces within the province: s. 2(5).

It is not for courts to take it upon themselves to create a single, national system of child support. [Emphasis added] [67] These reasons, written by Bastarache J. for the majority, support our finding that Quebec could legitimately adopt its ownsolution to the child support issue.

Quebec cannot be faulted for not adhering to the federal guidelines, as the other provinces have,[80]since the objective of equal treatment is attained by both sets of guidelines. [68] The appellants argue that they do not challenge the division of powers or the validity of the legislative technique ofincorporation by reference used by Parliament here.

Rather, they submit that, since the Charter applies even to statutes that are properlyenacted from the point of view of the constitutional division of powers,[81] the Quebec guidelines should be found to be discriminatoryin this case.[82] [69] The Court has already answered the appellants' argument. The province of residence is not an analogous ground ofdiscrimination prohibited by subsection 15(1) of the Charter. [70] In light of this conclusion, this analysis need not be pursued further.

However, given the importance of the issues raised by theparties and the efforts they have expended in sustaining their positions, the Court will continue its analysis in order to show that there isno perpetuation of a prejudice or stereotyping in this case. 4.2.3 - Absence of discrimination [71] To meet the second stage of the applicable test,[83] a challenge to a legislative provision under subsection 15(1) of the Chartermust show that the distinction creates a disadvantage by perpetuating a prejudice or through stereotyping. According to the SupremeCourt in R. v.

Kapp,[84] there are four factors to consider for the purposes of this analysis. [19] A decade later, in Law, this Court suggested that discrimination should be defined in terms of the impact of the law or program onthe “human dignity” of members of the claimant group, having regard to four contextual factors: (1) pre-existing disadvantage, if any, ofthe claimant group; (2) degree of correspondence between the differential treatment and the claimant group’s reality; (3) whether the lawor program has an ameliorative purpose or effect; and (4) the nature of the interest affected (paras. 62-75). [72] These factors may each be considered in turn. 1.

The pre-existing disadvantage, if any, of the claimant group [73] Since this contextual factor must be analyzed in light of the ground for discrimination invoked – in this case, province ofresidence – it should be said that there is absolutely nothing in the evidence on the record demonstrating that children whose parentsreside in Quebec have suffered a historical prejudice or disadvantage in comparison with children whose parents reside elsewhere inCanada. [74] Admittedly, the trial judge did point out the historical vulnerability of divorced or divorcing single mothers, but that, in and ofitself, in the absence of a ground of discrimination, has no bearing on the outcome of the case. 2.

The degree of correspondence between the differential treatment and the actual situation of the claimant group [75] In paragraph 241 of her judgment, the trial judge noted [translation] "that the support needs of mothers and their children are not

fundamentally different from one province to the other". [ 76 ] As we have seen, there is a rational and logical explanation for the present situation that is based not on stereotyping or prejudice, but on the fact that the appellants reside in a province where the legislature enacted child support guidelines and sought a designation pursuant to the mechanism set out in subsection 2(5) of the Divorce Act .

This reality, which Parliament has chosen to accommodate and which, according to the Supreme Court in D.B.S . [85] constitutes one of the two ways to achieve the objective of equal treatment, once again confirms the conclusion that the impugned interest is not discriminatory. 3. Whether the statute or program has an ameliorative purpose or effect [ 77 ] At this stage, one must consider whether the Quebec guidelines seek to protect or improve the situation of vulnerable persons.

If this question can be answered in the affirmative, it will undermine the claim that the Quebec guidelines are discriminatory. [86] [ 78 ] In this respect, it is important to recall that, in 1997, the clear purpose of enacting child support guidelines was to improve the situation of children with regard to the inequities of the system at the time, which underestimated the costs related to the needs of children and which lacked uniformity in the amount of support awarded. [87] Moreover, the legislative mechanism incorporating the Quebec guidelines by reference promotes equality amongst all children of the province, without regard to whether their parents were married or whether they were born from another kind of union. [ 79 ] In the view of the Court, the preservation of the dignity of children in this context is clearly consistent with values promoted by the Charter , including subsection 15(1) . 4.

The nature of the rights affected [ 80 ] This last criterion requires the consideration of the prejudice alleged by the appellants. [ 81 ] The impugned scheme provides for support payments for all children. In this case, therefore, no particular group is being entirely ignored. [88] [ 82 ] Moreover, the stated objectives in the federal and provincial schemes are the same.

Finally, while the schemes contain differences, they also have similarities, particularly when it comes to the exercise of judicial discretion. [89] [ 83 ] If we compare the situation before us to that of an accused charged with murder who is prevented from waiving the right to trial by jury, [90] or with that of a young offender deprived of an alternative sentence, [91] or again with that of a citizen prevented from exercising his or her right to vote on a proposed constitutional amendment [92] – three prejudicial situations that the Supreme Court nevertheless deemed to be non-discriminatory – it becomes plain we are compelled to acknowledge that the fact that the Quebec guidelines are less generous is not determinant. [ 84 ] In sum, it cannot be found that the prejudice caused to the appellants by the Quebec guidelines is tantamount to discrimination within the meaning of subsection 15(1) of the Charter because the guidelines do not contribute to the perpetuation of prejudice or to stereotyping.

Conclusion [ 85 ] With regard to costs, the Court, exercising the discretion conferred upon it by art. 477 C.C.P ., finds that the main appeal should be dismissed without costs, and that the incidental appeals should be allowed in part, without costs given the nature of the case. FOR THESE REASONS, THE COURT: [ 86 ] DISMISSES the appeal, without costs. [ 87 ] ALLOWS the incidental appeals, without costs, for the sole purpose of confirming that Order in Council SOR/97-237 , (1997) 131 C. Gaz.

II, 1415: Order Designating the Province of Quebec for the Purposes of the Definition of "applicable guidelines" in Subsection 2(1) of the Divorce Act does not infringe subsection 15(1) of the Canadian Charter of Rights and Freedoms . NICOLE DUVAL HESLER, C.J.Q. FRANCE THIBAULT, J.A. JULIE DUTIL, J.A. NICHOLAS KASIRER, J.A. JEAN BOUCHARD, J.A. Mtre Anne-France Goldwater and Mtre Marie-Hélène Dubé Goldwater Dubé For the appellants / incidental respondents

Mtre Justin Roberge and Mtre Isabelle Caron Caron Roberge Inc. Mtre Raynold Langlois, legal consultant (absent) Langlois Kronstrom Desjardins For the respondent / incidental appellant Mtre Marc Ribeiro Joyal, LeBlanc Mtre Chantal Comtois Department of Justice Canada For the Attorney General of Canada, impleaded third party and incidental appellant Mtre Francis Demers Bernard, Roy Mtre Dominique Legault and Mtre Caroline Renaud Direction générale des affaires juridiques et législatives For the Attorney General of Quebec, intervener and incidental appellant Date of hearing: November 7 and 8, 2012