CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA

CONSTITUTIONAL FRAMEWORK

In the case of Polglase v. Polglase,[1] Justice Hutchinson of the British Columbia Supreme Court held that courts of summary jurisdiction or provincially appointed decision-makers have authority to make decisions pertaining to spousal and child maintenance, assuming the decision relates to establishing periodic payments. The court dealt with this issue in isolation from divorce proceedings. Provincial court judges already exercise this authority pursuant to provincial legislation. Justice Hutchinson addressed both establishing and varying child support in this context.

In the Adoption Reference (1938),[2] the Supreme Court of Canada distinguished matters including adoption orders, enforcing spousal and child maintenance obligations and protecting neglected children as matters more closely in line with the authority historically exercised by the inferior courts. Similarly, in the subsequent case Re B.C. Family Relations Act 1982,[3] guardianship and custody were also held to be matters that could be considered by an inferior court or a court of summary jurisdiction staffed by provincial appointees. Following this case, however, the inferior court cannot make orders in respect of the occupancy of (and access to) the family residence.

However, in all of these cases, the court isolated these issues from divorce proceedings. Divorce is dealt with by federally appointed justices of the Superior Courts in each province and, therefore, any issue attaching to a divorce proceeding will more likely be considered ancillary to the divorce itself.

On numerous occasions, the courts have addressed what constitutes the authority of a Section 96, or superior court, judge. Section 96 of the Constitution Act 1867 states:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

The Governor General then has the constitutional authority to appoint the judges of the superior courts. Canadian jurisprudence has established that provincially appointed decision-making bodies cannot exercise the authority of superior or "Section 96" court judges who preside in the superior courts of each province.

Accordingly, the courts have examined the scope of the superior courts' authority, which cannot be removed from that forum. The test for whether or not a provincially established tribunal is exercising Section 96 functions was most clearly set out in the case of Re Residential Tenancies Act 1979.[4] In this case, the Supreme Court of Canada considered whether or not the Residential Tenancy Commission, appointed pursuant to the Ontario Residential Tenancies Act 1979, was exercising Section 96 court powers. The commission was vested with the responsibility of overseeing and enforcing the legislated rights and obligations of tenants and landlords.

In examining the issue of whether or not the commission's powers were ultra vires a provincially appointed body, the Supreme Court of Canada articulated a three-stage test. The components of the test are as follows:

  1. whether the powers of the inferior court are in broad conformity with the powers of Section 96 courts at the time of Confederation;
  2. whether the inferior court's powers are judicial (in other words, is the inferior court's decision determinative); and
  3. whether the inferior court's judicial power is necessarily incidental to the implementation of a broader policy goal.

If the answer to the first part of the test is "yes," it is then necessary to move onto the second and third stages of the test.

In regard to the first stage of this test, Peter Hogg states that the extent of this historical examination is not at all clear in regard to whether or not the consideration should be confined only to the four original provinces.[5] In any event, in the case of Sobeys Stores v. Yeomans,[6] Madame Justice Wilson of the Supreme Court of Canada established that, in a case of a tie, final resort should be made to the state of the law in the United Kingdom at the time of Confederation.

Of the second stage of the test, Peter Hogg suggests the question involves "the elusive task of characterizing the impugned power as ‘judicial' or as ‘administrative' or ‘legislative'."[7] According to Justice Dickson's articulation of the test, judicial functions exist where:

  1. the matter involves a private dispute between the parties;
  2. the matter must be adjudicated "through the application of a recognized body of rules;" and
  3. the matter must be proceeded with "in a manner consistent with fairness and impartiality."[8]

Finally, in considering the third stage of the test, Peter Hogg assesses a line of labour relations cases which shed light on the examination of the context of the decision-making function. He elaborates on the effect of these various cases:

In both Tomko [Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112] and John East [Labour Relations Bd. (Sask.) v. John East IronWorks, [1949] A.C. 134], the court-like adjudicative function of the labour relations board was ancillary to a broader administrative and policy-making role as administrator of the labour relations legislation. A similar argument carried the day in Sobeys Stores [already cited], where a labour standards tribunal's power to reinstate employees was upheld as ‘a minimum standard of protection for non-unionized employees.'[9]

This overview of the relevant case law is not intended as legal advice about the child support model which could be most viable from a constitutional standpoint in Canada. This legal determination will require extensive consultation with constitutional law experts who will be able to provide precise instruction in regard to the most appropriate course of action for a particular provincial government.

However, given these general legal principles, the most appropriate course of action might be to integrate administrative processing and some form of recommending procedure into the system that is set up so as not to interfere with the role of Section 96 judges. The feasibility of this approach requires consultation with the judiciary once a concrete model has been formulated.

In regard to these constitutional constraints, many of the models outlined in the predecessor to this report, entitled Expedited Child Support, may not be viable options in Canada. For instance, many existing child support models provide for administrative establishment of child support outside the court system and sometimes without any involvement of the judiciary. In places such as the United Kingdom, the court's jurisdiction over child support has been replaced by a child support administrative tribunal. In other places, child support can be established administratively in certain cases such as through the Title IV-D program in the United States or through the tax system operating in Australia and New Zealand.

These approaches might not work in Canada where the judiciary will have to retain a strong role in child support cases, particularly for divorce cases where it is not entirely clear whether or not child support will always be considered ancillary to the divorce proceeding, even in cases of varying or modifying an existing child support order. Based on these constitutional limitations, the recommended approach should be directly linked into the existing court structures and should be integrated as much as possible with existing family justice services.

DIVORCE ACT AMENDMENTS AND GUIDELINES

The proposed amendments to the Divorce Act and the corresponding child support guidelines set out the standards by which supreme court justices will be assessing child support amounts. The guidelines have not yet been finalized as of the time of writing this report and further amendments to the proposed legislative scheme may take place before the amendments come into effect.

As the draft proposal currently stands, the presumptive rule is that the amount of child support will be based on the non-custodial parent's annual income and the number of children requiring support. In addition, special or extraordinary expenses shall also be accounted for. These expenses include child care relating to the custodial parent's employment or education, medical or health-related expenses, primary or secondary school expenses for the child's needs, post-secondary education expenses and expenses for extracurricular activities.

The guiding principle is that expenses should be shared by the spouses in proportion to their means. The guidelines leave discretion with the court to vary from the guidelines on the basis of undue hardship resulting from unusually high debts reasonably incurred to support the spouse and children or to earn a living; high expenses incurred in obtaining access to the child; a court-ordered duty to support someone; a legal duty to support another child who is either under the age of majority or otherwise unable to be self-supporting. The test to be applied in assessing whether or not there is hardship is a standard of living test, consisting of a comparison between the two parents' living standards.

In addition, the court may accept a consent arrangement between the two parents upon being satisfied that the arrangement reasonably provides for the child's support having regard to the standards set in the guidelines. This provision for consent relates both to the initial establishment of the order and to variation of an order. It will affect the role of mediation in that any agreement must be in line with the guidelines, regardless of other outstanding issues.

In most circumstances when a parent seeks to have an existing support order varied, relevant considerations are whether a change in circumstances would result in a different amount of child support or a change in the conditions, means, needs or circumstances, including tax implications, of either parent since the initial order was made.

Bearing in mind these aspects of the guidelines, there is a certain amount of latitude for negotiation and/or court discretion and, accordingly, a model should integrate one or more dispute resolution mechanisms as visually presented at Appendix B of this report.

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