Reasons for Judgment — Côté J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)
I. Overview
The Federal Child Support Guidelines, SOR/97‑175 (“Child Support Guidelines”), established by the Governor in Council (“GIC”) under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), determine the amount of child support to be paid in case of divorce, except in the province of Quebec. The appellant, Roland Nikolaus Auer, challenges the vires of the Child Support Guidelines. This challenge requires our Court to determine whether the GIC acted within the scope of its delegated authority in establishing the Child Support Guidelines.
To answer this question, our Court has to determine the standard of review that applies when reviewing the vires of subordinate legislation. Doing so requires the Court to resolve debates about the continued relevance of Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, in light of our Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
I conclude that the reasonableness standard as set out in Vavilov presumptively applies when reviewing the vires of subordinate legislation. I also conclude that some of the principles from Katz Group continue to inform such reasonableness review: (1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; (2) subordinate legislation benefits from a presumption of validity; (3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and (4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice.
However, for subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with the robust reasonableness review detailed in Vavilov and would undermine Vavilov’s promise of simplicity, predictability and coherence.
The Child Support Guidelines are intra vires the GIC. They fall within a reasonable interpretation of the scope of the GIC’s authority under s. 26.1 of the Divorce Act, having regard to the relevant constraints. Section 26.1(1) of the Divorce Act grants the GIC extremely broad authority to establish guidelines respecting child support. This authority is constrained by s. 26.1(2) of the Divorce Act, which requires that the guidelines 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. The Child Support Guidelines respect this constraint.
Contrary to Mr. Auer’s submissions, in selecting an approach to calculating child support, the GIC was authorized to: (1) not take into account the recipient parent’s income; (2) assume that parents spend the same linear percentage of income on their children regardless of the parents’ levels of income and the children’s ages; (3) not take into account government child benefits paid to recipient parents; (4) not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) risk the double counting of certain special or extraordinary expenses. Each of these decisions falls squarely within the scope of the authority delegated to the GIC under the Divorce Act. Accordingly, I would dismiss Mr. Auer’s appeal.
II. Facts
Roland Auer and the respondent Aysel Igorevna Auer were married in 2004. They had one child together in 2005 and divorced in 2008. Their child resides with Ms. Auer. Mr. Auer has paid both child and spousal support to Ms. Auer. Mr. Auer also has children from other marriages to whom he owes, or has owed, support.
Mr. Auer brought an application for judicial review challenging the vires of the Child Support Guidelines. He argued that the GIC exceeded its authority under s. 26.1(1) and (2) of the Divorce Act when enacting the Child Support Guidelines because they require a payer parent to pay a greater share of the child‑related costs than the recipient parent. Ms. Auer did not participate in the application before the Court of Queen’s Bench of Alberta, and the Attorney General of Canada was granted leave to intervene with broad rights, such that he is now a respondent in this matter.
Mr. Auer and Ms. Auer have ongoing applications before the Court of King’s Bench of Alberta concerning child and spousal support issues. Those applications have been heard and are subject to the outcome of this appeal.
III. Judicial History
A. Court of Queen’s Bench of Alberta, 2021 ABQB 370, 32 Alta. L.R. (7th) 250
The chambers judge dismissed Mr. Auer’s application for judicial review. He held that, following Vavilov, the presumptive standard of review for assessing the vires of subordinate legislation is reasonableness, but that reasonableness review should be informed by the principles outlined in Katz Group.
The chambers judge held that s. 26.1(1) of the Divorce Act, which authorizes the GIC to establish guidelines respecting orders for child support, confers the GIC an “extremely broad grant of authority”, and that the Child Support Guidelines’ provisions were not irrelevant, extraneous or unrelated to the purpose of child support (para. 52; see also paras. 76 and 78).
Mr. Auer argued that the Child Support Guidelines are ultra vires because they require the payer parent to pay a greater share of the child‑related costs than the recipient parent. He relied heavily on s. 26.1(2) of the Divorce Act, which he said imposes a specific constraint on the GIC’s regulation‑making authority. Section 26.1(2) provides that the Child Support 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”. Mr. Auer argued that specific aspects of the Child Support Guidelines violate the constraint imposed in s. 26.1(2) of the Divorce Act by requiring the payer parent to bear a greater share of the child‑related costs than the recipient parent. These aspects include the presumption that both parents earn the same income, a court’s authority to award special or extraordinary expenses under s. 7 of the Child Support Guidelines and the decision not to include child tax benefits as part of the recipient parent’s income.
The chambers judge accepted that s. 26.1(2) “informs, and to a degree, constrains” the GIC’s grant of authority, but held that this constraint must be weighed against the GIC’s extremely broad grant of authority under s. 26.1(1) (para. 52). In his view, most of the issues Mr. Auer raised fell outside of a vires review because they sought to impugn the GIC’s policy decisions and ignored the GIC’s broad discretion under the Divorce Act. The chambers judge ultimately concluded that the Child Support Guidelines are intra vires.
B. Court of Appeal of Alberta, 2022 ABCA 375, 52 Alta. L.R. (7th) 8
The Court of Appeal unanimously dismissed Mr. Auer’s appeal. However, the court was divided on the standard of review applicable to a review of the vires of subordinate legislation.
Writing for the majority, Pentelechuk J.A. held that Vavilov did not overtake Katz Group. In her view, to be ultra vires for being inconsistent with the purpose of the enabling statute, “true regulations” (para. 34), such as those established by the GIC, which create law through the exercise of a legislative function, must be “irrelevant”, “extraneous” or “completely unrelated” to that purpose (Katz Group, at para. 28). However, the reasonableness standard applies when reviewing “bylaws, rules, and regulations made by administrative tribunals or municipal governments” (C.A. reasons, at para. 34; see also para. 20).
Like the chambers judge, Pentelechuk J.A. concluded that the Child Support Guidelines are not “irrelevant”, “extraneous” or “completely unrelated” to the Divorce Act’s purpose. She noted that “[w]hile the Guidelines may not be perfect, time has demonstrated that they have achieved the stated intent of predictability and ease of use” (para. 113). She found that the chambers judge’s analysis was thorough and properly alive to the limitations of reviewing subordinate legislation and to the fact that Mr. Auer’s arguments were inextricably woven with policy disputes. Thus, she dismissed Mr. Auer’s appeal.
Justice Feehan concurred in the result but held that the reasonableness standard under the Vavilov framework applies when reviewing the vires of the Child Support Guidelines. In his view, the criteria set out in Katz Group inform reasonableness review.
IV. Issues
The issues on appeal are as follows:
1. What is the applicable standard of review when reviewing the vires of subordinate legislation?
2. Are the Child Support Guidelines ultra vires the GIC under the Divorce Act?
V. Standard of Review
A. Vavilov Is the Starting Point for Determining the Appropriate Standard of Review
Vavilov represented a “recalibration of the governing approach to the choice of standard of review analysis and a clarification of the proper application of the reasonableness standard” (para. 143). It “set out a holistic revision of the framework for determining the applicable standard of review” when conducting a substantive review of an administrative decision (ibid.). Our Court explained that Vavilov is the starting point: “A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case” (ibid.).
That said, Vavilov was not itself a case about the vires of subordinate legislation. It involved the judicial review of a decision by the Canadian Registrar of Citizenship to cancel Mr. Vavilov’s certificate of citizenship on the basis that he was not a Canadian citizen under s. 3(1)(a) of the Citizenship Act, R.S.C. 1985, c. C‑29, because he fell within the ambit of an exception set out at s. 3(2)(a). Thus, in Vavilov, our Court did not explicitly settle the standard of review that applies when reviewing the vires of subordinate legislation (J. M. Keyes, “Judicial Review of Delegated Legislation — The Road Beyond Vavilov” (2022), 35 C.J.A.L.P. 69, at p. 100). However, as I explain below, Vavilov provides the appropriate framework for determining the standard of review in this context. Under that framework, I conclude that the reasonableness standard applies to the vires challenge in this case.
B. The Vavilov Framework Applies When Reviewing the Vires of Subordinate Legislation
In Vavilov, our Court set out a comprehensive framework for determining the standard of review that applies to any substantive review of an administrative decision (para. 17). In doing so, this Court brought “greater coherence and predictability to this area of law” and eliminated the need for courts to engage in a contextual inquiry to determine the appropriate standard of review (paras. 10 and 17). Our Court recognized that “the sheer variety of decisions and decision makers” posed a challenge to developing a coherent and unified approach to judicial review (para. 88). We ensured that the revised framework “accommodates all types of administrative decision making, in areas that range from immigration, prison administration and social security entitlements to labour relations, securities regulation and energy policy” (para. 11). These include decisions of “specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front‑line decision makers, and more . . . vary[ing] in complexity and importance, ranging from the routine to the life‑altering . . . includ[ing] matters of ‘high policy’ on the one hand and ‘pure law’ on the other” (para. 88).
In setting out Vavilov’s comprehensive framework, our Court expressly contemplated questions of vires. Specifically, this Court ceased to recognize jurisdictional questions — also referred to as “true questions of jurisdiction or vires” — as a distinct category of questions attracting correctness review (paras. 65‑67 and 200). In doing so, we expressly referred to cases involving challenges to the vires of subordinate legislation, including Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, and West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635 (Vavilov, at para. 66). This Court explained that “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute”, especially where, as in Green and West Fraser Mills, “the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute” (Vavilov, at para. 66, citing Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at para. 111, per Brown J., concurring).
Vavilov’s framework applies to determining the standard for reviewing the vires of subordinate legislation. Vavilov set out a comprehensive framework for determining the applicable standard of review and, in doing so, contemplated questions of vires.
C. Reasonableness Is the Presumptive Standard for Reviewing the Vires of Subordinate Legislation
Vavilov’s framework established a presumption of reasonableness review. It set out limited exceptions where the legislature has indicated that it intends a different standard to apply or where the rule of law requires that the correctness standard be applied (para. 17). The questions for which the rule of law requires that the correctness standard be applied include: (1) constitutional questions that require a final and determinate answer from the courts; (2) general questions of law of central importance to the legal system as a whole; and (3) questions related to the jurisdictional boundaries between two or more administrative bodies (para. 53).
No exception to the presumption of reasonableness review applies in this case. The legislature has not indicated that the GIC’s decision to establish the Child Support Guidelines must be reviewed on a standard other than reasonableness, nor does the rule of law require that the correctness standard be applied to a vires review of the Child Support Guidelines.
In Vavilov, our Court explained that the rule of law does not require that questions of vires, in themselves, be reviewed for correctness (paras. 67‑69 and 109; see also J. M. Keyes, Executive Legislation (3rd ed. 2021), at pp. 171‑72). A robust reasonableness review is sufficient to ensure that statutory delegates act within the scope of their lawful authority (Vavilov, at paras. 67‑69 and 109). Further, when explaining that reasonableness review can be conducted even in the absence of reasons, our Court cited Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, and Green, both of which involved a review of the vires of subordinate legislation (Vavilov, at para. 137).
All of this indicates that Vavilov’s robust reasonableness standard is the default standard when reviewing the vires of subordinate legislation (Keyes (2021), at p. 171; see also Keyes (2022); P. Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (2023), at pp. 146‑47; M. P. Mancini, “One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review” (2024), 55 Ottawa L. Rev. 245). However, in exceptional cases, a vires review may engage a question that the rule of law requires be reviewed for correctness. In such cases, the presumption of reasonableness review may be rebutted. For example, a challenge to the validity of subordinate legislation on the basis that it fails to respect the division of powers between Parliament and provincial legislatures would require that the correctness standard be applied.
Reviewing the vires of the Child Support Guidelines does not engage a question that the rule of law requires be reviewed for correctness. Accordingly, the presumptive standard of reasonableness applies in this case.
D. What Is the Role of Katz Group?
(1) Many of the Principles From Katz Group Continue To Apply
In Katz Group, our Court upheld the validity of Ontario regulations adopted by the Lieutenant Governor in Council that aimed to control the price of prescription drugs. Justice Abella, writing for our Court, did not discuss the applicable standard of review. However, she outlined the following principles for assessing the vires of subordinate legislation:
• “A successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate” (para. 24);
• “Regulations benefit from a presumption of validity . . . . This presumption has two aspects: it places the burden on challengers to demonstrate the invalidity of regulations . . . and it favours an interpretive approach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires” (para. 25 (emphasis deleted));
• “Both the challenged regulation and the enabling statute should be interpreted using a ‘broad and purposive approach . . . consistent with the Court’s approach to statutory interpretation generally’” (para. 26, quoting United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at para. 8);
• “This inquiry does not involve assessing the policy merits of the regulations to determine whether they are ‘necessary, wise, or effective in practice’” (para. 27, quoting Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595 (C.A.), at p. 604). “It is not an inquiry into the underlying ‘political, economic, social or partisan considerations’” or an assessment of whether the regulations “will actually succeed at achieving the statutory objectives” (para. 28, quoting Thorne’s Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106, at pp. 112‑13);
• The regulations “must be ‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose to be found ultra vires on the basis of inconsistency with statutory purpose” (para. 28).
For convenience, I will refer to the final principle as the “irrelevant”, “extraneous” or “completely unrelated” threshold.
In setting out Vavilov’s comprehensive framework for determining the applicable standard of review, our Court did not entirely discard prior jurisprudence. Rather, the Court explicitly stated that “past precedents will often continue to provide helpful guidance” (para. 143). This remains true even when considering cases involving “true questions of jurisdiction or vires”, though they “will necessarily have less precedential force” because Vavilov ceased to recognize such questions as a distinct category attracting correctness review (paras. 65 and 143). As Paul Daly explains, “past jurisprudence has not been ‘ousted’” by Vavilov ((2023), at pp. 148‑49, citing Terrigno v. Calgary (City), 2021 ABQB 41, 1 Admin. L.R. (7th) 134, at para. 62). Since Katz Group involved a true question of jurisdiction or vires, the Court must carefully examine the role of that case going forward.
In my view, all of the above‑mentioned principles in Katz Group, except for the “irrelevant”, “extraneous” or “completely unrelated” threshold, remain good law and continue to inform the review of the vires of subordinate legislation. As I will explain, the significant sea change brought about by Vavilov in favour of a presumption of reasonableness as a basis for review erodes the rationale for the “irrelevant”, “extraneous” or “completely unrelated” threshold, and maintaining this threshold would perpetuate uncertainty in the law. Accordingly, there is sound basis for a narrow departure from Katz Group (see Canada (Attorney General) v. Power, 2024 SCC 26, at paras. 98 and 209; R. v. Kirkpatrick, 2022 SCC 33, at para. 202, per Côté, Brown and Rowe JJ., concurring). Otherwise, Katz Group continues to “provide valuable guidance on the application of the reasonableness standard” (Daly (2023), at p. 148). To the extent that the principles in Katz Group do not conflict with Vavilov, they “are to form part of the application of the reasonableness standard” (p. 149).
For greater clarity, the principle that subordinate legislation “must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object” continues to apply when conducting a vires review (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 87; see also Vavilov, at paras. 108 and 110; Reference re Impact Assessment Act, 2023 SCC 23, at para. 283, per Karakatsanis and Jamal JJ., dissenting in part, but not on this point). The principle that subordinate legislation benefits from a presumption of validity also continues to apply (Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 54). Further, the challenged subordinate legislation and the enabling statute should continue to be interpreted using a broad and purposive approach (Green, at para. 28; West Fraser Mills, at para. 12). Finally, a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is “necessary, wise, or effective in practice”. Courts are to review only the legality or validity of subordinate legislation (West Fraser Mills, at para. 59, per Côté J., dissenting, but not on this point; La Rose v. Canada, 2023 FCA 241, 488 D.L.R. (4th) 340, at para. 26; see also Mancini, at p. 276).
These well‑established principles are consistent with Vavilov, and they should continue to be applied in accordance with the foundational common law principle of stare decisis.
As explained, Vavilov recognized the continued relevance and application of prior jurisprudence insofar as that jurisprudence is consistent with Vavilov’s framework for determining the appropriate standard of review and its principles governing robust reasonableness review. Nothing in Vavilov contradicts the principles that: (1) subordinate legislation “must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object”, (2) the challenged subordinate legislation and the enabling statute are to be interpreted using a broad and purposive approach to statutory interpretation and (3) a review of the vires of subordinate legislation does not involve assessing policy merits.
The principle that subordinate legislation benefits from a presumption of validity has been criticized by some for being inconsistent with Vavilov (see Portnov v. Canada (Attorney General), 2021 FCA 171, [2021] 4 F.C.R. 501, at paras. 20‑22; Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, 8 Admin. L.R. (7th) 44, at para. 30). However, this criticism is mistaken.
In Katz Group, our Court explained that this presumption has two aspects: (1) “it places the burden on challengers to demonstrate the invalidity of [subordinate legislation]”; and (2) “it favours an interpretive approach that reconciles the [subordinate legislation] with its enabling statute so that, where possible, the [subordinate legislation] is construed in a manner which renders it intra vires” (para. 25 (emphasis in original)).
The first aspect — that the burden is on challengers to demonstrate the invalidity of subordinate legislation — is uncontroversial. Indeed, in Vavilov, our Court explained that where an administrative decision is reviewed for reasonableness, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (para. 100).
The second aspect — that, where possible, subordinate legislation should be construed in a manner that renders it intra vires — is also consistent with Vavilov. This aspect does not heighten the burden that challengers would otherwise face pursuant to Vavilov. The burden on challengers depends on the applicable standard of review. If the reasonableness standard applies, to overcome the presumption of validity, challengers must demonstrate that the subordinate legislation does not fall within a reasonable interpretation of the delegate’s statutory authority. If the correctness standard applies, challengers can overcome the presumption of validity by demonstrating that the subordinate legislation does not fall within the correct interpretation of the delegate’s statutory authority.
All of these principles from Katz Group, including the principle that subordinate legislation benefits from a presumption of validity, have been repeatedly affirmed by our Court (see Vavilov, at paras. 108 and 110; References re Greenhouse Gas Pollution Pricing Act, at para. 87; Reference re Impact Assessment Act, at para. 283; Canadian Council for Refugees, at para. 54; Green, at para. 28; West Fraser Mills, at paras. 12 and 59). In these circumstances, it would be inconsistent with the common law tradition and the principle of stare decisis to discard Katz Group and the continued application of these principles.
(2) The “Irrelevant”, “Extraneous” or “Completely Unrelated” Threshold Is No Longer Relevant
Writing for a majority of the Court of Appeal, Pentelechuk J.A. held that the vires of the Child Support Guidelines was to be reviewed on the basis of the “irrelevant”, “extraneous” or “completely unrelated” threshold, instead of on the reasonableness standard in accordance with Vavilov. I disagree. As I explain in this section, the conceptual basis for the “irrelevant”, “extraneous” or “completely unrelated” threshold does not hold in a legal landscape now organized by the principles set out in Vavilov, which centre around reasonableness review. This threshold from Katz Group is now out of step with these principles; maintaining it would perpetuate uncertainty in the law. Accordingly, the “irrelevant”, “extraneous” or “completely unrelated” threshold does not provide a standalone rule for a vires review.
Justice Pentelechuk distinguished between “true regulations”, which create law through the exercise of a legislative function, such as those passed by the GIC, and “bylaws, rules, and regulations made by administrative tribunals or municipal governments” (paras. 20 and 34). She held that the vires of “true regulations” are not to be reviewed on the reasonableness standard; rather, the appropriate test is whether they are “irrelevant”, “extraneous” or “completely unrelated” to the purpose of their enabling statute, as outlined in Katz Group. By contrast, the vires of bylaws, rules and regulations made by administrative tribunals or municipal governments are to be reviewed for reasonableness (para. 82). In making this distinction, Pentelechuk J.A. relied on the fact that “true regulations” are subject to a “consultation process culminating in parliamentary review” while “bylaws, rules, and regulations made by administrative tribunals or municipal governments” are not (para. 34).
According to Pentelechuk J.A., the appropriate standard for reviewing the vires of subordinate legislation depends on the identity of the decision maker who enacted it. I disagree. The identity of the decision maker does not determine the standard of review. “Regulations ‘derive their validity from the statute which creates the power, and not from the executive body by which they are made’” (Canadian Council for Refugees, at para. 51, citing Reference as to the Validity of the Regulations in relation to Chemicals, [1943] S.C.R. 1, at p. 13). In Vavilov, our Court noted the “sheer variety of [administrative] decisions and decision makers” and yet confirmed that reasonableness is a single standard that takes account of this diversity (para. 88).
To summarize, unless the legislature has indicated otherwise or if a matter invokes an issue pertaining to the rule of law which would require a review on the basis of correctness, the vires of subordinate legislation are to be reviewed on the reasonableness standard regardless of the delegate who enacted it, their proximity to the legislative branch or the process by which the subordinate legislation was enacted. Introducing these distinctions into the standard of review framework would be “contrary to the Vavilovian purposes of simplification and clarity” (P. Daly, Resisting which Siren’s Call? Auer v Auer, 2022 ABCA 375 and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381, November 24 2022 (online); Daly (2023), at p. 147).
In concurring reasons, Feehan J.A. held that while the vires of subordinate legislation are to be reviewed for reasonableness pursuant to Vavilov, the “irrelevant”, “extraneous” or “completely unrelated” threshold informs that analysis. He explained that the presumption that subordinate legislation is valid may “be overcome if the regulation is ‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the objectives of governing statutes” (para. 123(b)). The chambers judge was of a similar view (see paras. 17 and 78). I reject this approach. The “irrelevant”, “extraneous” or “completely unrelated” threshold should not inform reasonableness review under the Vavilov framework. This is because that threshold is inconsistent with robust reasonableness review under that framework and because maintaining it would undermine Vavilov’s promise of simplicity, predictability and coherence.
Reasonableness review ensures that courts intervene in administrative matters where it is truly necessary to do so to safeguard the legality, rationality and fairness of the administrative process (Vavilov, at para. 13). While reasonableness review “finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers”, “[i]t remains a robust form of review” (ibid.). By contrast, the “irrelevant”, “extraneous” or “completely unrelated” threshold connotes a very high degree of deference, one that is inconsistent with the degree of scrutiny required under a reasonableness review (see British Columbia (Attorney General) v. Le, 2023 BCCA 200, 482 D.L.R. (4th) 20, at para. 94).
This inconsistency is of particular importance when considering “the concern that an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended” (Vavilov, at para. 109; see also para. 68). In Vavilov, our Court explained that robust reasonableness review is “capable of allaying [this] concern” and allows “courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority” (paras. 67 and 109). By contrast, the very high degree of deference that the “irrelevant”, “extraneous” or “completely unrelated” threshold accords statutory delegates in interpreting their authority under their enabling statute does not adequately address this concern. This is demonstrated by Abella J.’s comment that it would take an “egregious case” to strike down subordinate legislation on the basis that it is “irrelevant”, “extraneous” or “completely unrelated” to the purpose of its enabling statute (Katz Group, at para. 28, citing Thorne’s Hardware, at p. 111).
Further, Vavilov sought to bring simplicity, predictability and coherence to the analysis for determining the appropriate standard of review. Our Court noted that reasonableness is a single standard that applies in different contexts (para. 89). Vavilov’s objective of providing simplicity, predictability and coherence would be undermined if different tests, such as the “irrelevant”, “extraneous” or “completely unrelated” threshold, applied as part of the reasonableness standard. Even if different tests were sufficiently robust, the mere fact of applying them would create undue complexity and fragmentation (Keyes (2022), at pp. 75‑76; see also Innovative Medicines Canada, at para. 35).
Ultimately, we should depart from the “irrelevant”, “extraneous” or “completely unrelated” threshold established in Katz Group because its rationale was eroded by Vavilov and because continuing to maintain it would “create or perpetuate uncertainty in the law” (Vavilov, at para. 20; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 528).
E. How To Conduct a Reasonableness Review of the Vires of Subordinate Legislation Under the Vavilov Framework
In conducting a reasonableness review, “the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99). Subordinate legislation benefits from a presumption of validity (Katz Group, at para. 25). The burden is on the party challenging the subordinate legislation to show that it is not reasonably within the scope of the delegate’s authority (Vavilov, at paras. 100 and 109).
Vavilov recognized two types of fundamental flaws that would make an administrative decision unreasonable: (1) there is a failure of rationality internal to the reasoning process; or (2) the decision is untenable in light of the factual and legal constraints that bear on it (para. 101). In what follows, I will explain how the principles outlined in Vavilov for conducting reasonableness review apply to a review of the vires of subordinate legislation.
(1) Reasonableness Review Is Possible in the Absence of Formal Reasons
Most of the time formal reasons are not provided for the enactment of subordinate legislation (Vavilov, at para. 137). However, Vavilov contemplated reasonableness review in the absence of formal reasons, including in the context of a vires review of subordinate legislation (ibid., referring to Catalyst Paper and Green). “[E]ven in such circumstances, the reasoning process that underlies the decision will not usually be opaque” (Vavilov, at para. 137). The reasoning process can often be deduced from various sources.
In Catalyst Paper, our Court reviewed the validity of municipal taxation bylaws. Chief Justice McLachlin noted that “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw” (para. 29). Courts can also look to regulatory impact analysis statements if they are available. As Mancini explains:
. . . something akin to a form of justification — whether a record of submissions, an accompanying statement of purpose, or specific recitals — may sometimes accompany regulatory action. Specifically — especially in the modern era — the problem of having neither a record nor reasons is less likely to arise. As [John Mark] Keyes noted, the sources for the “reasoning process” of executive legislation “have become increasingly rich as the processes for making it have become more transparent in the latter part of the 20th century and into the 21st.” At the federal level, statutory instruments, like regulations, “are accompanied by Regulatory Impact Analysis Statements outlining the reasons for regulations and their anticipated impact.” Courts can use Regulatory Impact Analysis Statements to assess the reasonableness of executive legislation by providing insight into the interlocking purposes of the enabling statute and regulatory instrument.
(pp. 278‑79, citing J. M. Keyes, “Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov”, in University of Ottawa Faculty of Law, Working Paper No. 2020‑14 (June 18, 2020), at p. 11, and J. M. Keyes, Executive Legislation (2nd ed. 2010), at ch. 4.)
Even where such sources are not available, “it is possible for the record and the 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, [1959] S.C.R. 121]” (Vavilov, at para. 137). However, importantly, as I explain below, the issue of whether the regulations is a reasonable decision depends on whether the regulations are justifiably (or reasonably) within the scope of the authority delegated by the enabling legislation.
(2) Reasonableness Review Is Not an Examination of Policy Merits
Justice Pentelechuk was of the view that applying Vavilov’s reasonableness standard when reviewing the vires of subordinate legislation would violate the principle of separation of powers because the court would be examining the policy merits of the subordinate legislation (paras. 58‑59 and 63; see also S. Blake, Clarity on the standard of review of regulations, December 20, 2022 (online)).
With respect, this concern is misplaced. As Paul Salembier explains, “[t]he reasonableness standard does not assess the reasonableness of the rules promulgated by the regulation‑making authority; rather, it addresses the reasonableness of the regulation‑making authority’s interpretation of its statutory regulation‑making power” (Regulatory Law and Practice (3rd ed. 2021), at p. 159). A court’s role is to review the legality or validity of the subordinate legislation, not to review whether it is “necessary, wise, or effective in practice” (Katz Group, at para. 27, citing Jafari, at p. 604; see also Keyes (2021), at pp. 186‑88). “It is not an inquiry into the underlying ‘political, economic, social or partisan considerations’” (Katz Group, at para. 28, citing Thorne’s Hardware, at pp. 112‑13).
A court must be mindful of its proper role when reviewing the vires of subordinate legislation, especially when it relies on the record, other sources or the context to ascertain the delegate’s reasoning process. Mancini explains:
Importantly courts must organize these various sources properly to preserve the focus on the limiting statutory language. Again, the reasonableness review should not focus on the content of the inputs into the process or the policy merits of those inputs. Rather, courts must key these sources to the analysis of whether the subordinate instrument is consistent with the enabling statute’s text, context, and purpose. For example, Regulatory Impact Analysis Statements can inform a court as to the link between an enabling statute’s purpose and a regulatory aim, much like Hansard evidence. These analyses can help show how the effects of a regulation which, at first blush appear unreasonable, are enabled by the primary legislation. [p. 279]
The potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences. Whether those consequences are in themselves necessary, desirable or wise is not the appropriate inquiry.
(3) The Relevant Constraints
In Vavilov, our Court explained that “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers” (para. 105). Reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute (para. 108; Mancini, at pp. 274‑75; see, e.g., West Fraser Mills, at para. 23).
Accordingly, the governing statutory scheme, other applicable statutory or common law and the principles of statutory interpretation are particularly relevant constraints when reviewing the vires of subordinate legislation (Keyes (2021), at p. 175).
(a) Governing Statutory Scheme
“Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision” (Vavilov, at paras. 108‑9; Mancini, at p. 275).
The language chosen by the legislature in an enabling statute describes the limits and contours of a delegate’s authority (Vavilov, at para. 110). The legislature may use precise and narrow language to delineate the power in detail, thereby tightly constraining the delegate’s authority. Alternatively, the legislature may use broad, open‑ended or highly qualitative language, thereby conferring broad authority on the delegate (ibid.; see also Keyes (2021), at pp. 195‑96). Statutory delegates must respect the legislature’s choice in this regard. They “must ultimately comply ‘with the rationale and purview’” of their enabling statutory scheme in accordance with its text, context and purpose (Vavilov, at para. 108, citing Catalyst Paper, at paras. 15 and 25‑28, and Green, at para. 44).
(b) Other Statutory or Common Law
The scope of a statutory delegate’s authority may also be constrained by other statutory or common law. Unless the enabling statute provides otherwise, when enacting subordinate legislation, statutory delegates must adopt an interpretation of their authority that is consistent with other legislation and applicable common law principles (Vavilov, at para. 111, referring to Katz Group, at paras. 45‑48; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at para. 40; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 74; Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93‑98; Keyes (2021), at pp. 205‑6).
(c) Principles of Statutory Interpretation
Statutory delegates are empowered to interpret the scope of their authority when enacting subordinate legislation. Their interpretation must, however, be consistent with the text, context and purpose of the enabling statute (Vavilov, at paras. 120‑21; Keyes (2021), at p. 193). They must interpret the scope of their authority in accordance with the modern principle of statutory interpretation. The words of the enabling statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
In conducting a vires review, a court does not undertake a de novo analysis to determine the correct interpretation of the enabling statute and then ask whether, on that interpretation, the delegate had the authority to enact the subordinate legislation. Rather, the court ensures that the delegate’s exercise of authority falls within a reasonable interpretation of the enabling statute, having regard to the relevant constraints.
In what follows, I apply the reasonableness standard to review the vires of the Child Support Guidelines.
VI. Analysis
A. Overview of the Child Support Guidelines
In Canada, child support has been legislated since 1855. Early statutory schemes vested judges with discretion to determine child support amounts based on need. Judges were thus required to decide upon a reasonable amount of child support for the care of the child (Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at para. 46). This discretionary approach was heavily criticized for being “uncertain, inconsistent, and often resulting in unfair awards” (para. 48; J. D. Payne and M. A. Payne, Child Support Guidelines in Canada, 2020 (2020), at p. 1). This was in part because “judges, counsel, or parties underestimat[ed] the cost of raising a child” and because courts would insist on proof of the child’s expenses (Michel, at para. 48). This placed the burden of proof on the recipient parent, and where such evidence was not adduced, there was concern that the award would be “subjective and somewhat arbitrary” (ibid., citing Childs v. Childs (1990), 107 N.B.R. (2d) 176 (C.A.), at para. 6).
As Martin J. explained in her concurring reasons in Michel, the objective of the Child Support Guidelines “was to remedy this situation by maintaining the principles core to child support while providing much‑needed certainty, consistency, predictability, and efficiency” (para. 49, citing Francis v. Baker, [1999] 3 S.C.R. 250, at paras. 39‑40). The federal, provincial and territorial governments formed a Family Law Committee (“Committee”) to undertake major research studies on child support in Canada (Payne and Payne, at p. 1). The Committee “recommended the application of a child support formula under the Divorce Act, ‘guided by the principle that both parents have a responsibility to meet the financial needs of the children according to their income’” (Michel, at para. 49, citing Federal/Provincial/Territorial Family Law Committee, Report and Recommendations on Child Support (1995), at p. i). In 1996, following the Committee’s recommendation, Parliament introduced 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., 1996‑97 (as passed by the House of Commons on November 18, 1996). Bill C‑41 amended the Divorce Act to expressly authorize the GIC to establish guidelines respecting orders for child support (Divorce Act, s. 26.1(1)).
On May 1, 1997, the GIC established the Child Support Guidelines, which introduced a “radical change” to child support rights and obligations under the Divorce Act (Payne and Payne, at p. 1). Our Court has described the purpose of the Child Support Guidelines as being to “establish fair levels of support for children from both parents upon marriage breakdown, in a predictable and consistent manner” (Francis, at para. 39; see also Child Support Guidelines, s. 1). While the Child Support Guidelines depart from the discretionary model that preceded them, they continue to reflect the following core principles: (1) child support is the right of the child; (2) the right to support survives the breakdown of the child’s parents’ marriage; (3) child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and (4) the specific amounts of child support owed will vary based upon the income of the payer parent (D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38).
Section 3 of the Child Support Guidelines “creates a presumptive rule whereby, unless otherwise provided by the Divorce Act or under the Guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table . . . and (b) the amount, if any, determined under section 7 of the Guidelines for special or extraordinary expenses” (Payne and Payne, at p. 12). The table amount “is a function of the income of the paying parent and the number of children the award is to cover” (Francis, at para. 1). The table “focus[es] on a system of ‘average’ justice and move[s] away from creating individual justice on a case‑by‑case basis” (N. Fera, “New Child-Support Guidelines — A Brief Overview” (1997), 25 R.F.L. (4th) 356, at p. 356). The use of the table is “intended to bring about an objective and predictable determination of child support, and bring an end to the subjective, ad hoc [pre‑Child Support Guidelines] case decisions” (F. Hudani, ed., Wilson on Children and the Law (loose‑leaf), at § 4.10). Judges may deviate from the table amount in cases involving children over the age of majority (Child Support Guidelines, s. 3(2)), payer parents with an income over $150,000 (s. 4), special or extraordinary expenses (s. 7), shared parenting time (s. 9(b)) or undue hardship (s. 10).
A proper construction of a provision of the Child Support Guidelines “requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual ‘condition[s], means, needs and other circumstances of the children’ on the other” (Contino v. Leonelli‑Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 33, citing Francis, at para. 40).
B. Mr. Auer’s Challenge
Mr. Auer bears the burden of proving that the Child Support Guidelines are ultra vires (Katz Group, at para. 25). He submits that the Child Support Guidelines are ultra vires because they violate two constraints on the GIC’s authority. First, the amounts transferred can only be in respect of “direct child costs” and cannot more broadly redistribute income between parents (A.F., at para. 57). Mr. Auer submits that this constraint applies because support awards under the Child Support Guidelines compensate only for “direct child costs”; “indirect [child] costs” are left to the law of spousal support (para. 56). Second, under s. 26.1(2) of the Divorce Act, child‑related costs are to be shared according to the parents’ relative abilities to contribute (para. 58).
According to Mr. Auer, the Child Support Guidelines violate these two constraints by requiring the payer parent to bear more than their fair share of direct child‑related costs. This is because the Child Support Guidelines (1) do not take into account the recipient parent’s income; (2) incorrectly assume that parents spend the same linear percentage of income on their children regardless of the parents’ levels of income and the children’s ages; (3) do not take into account government child benefits paid to the recipient parent; (4) do not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) double count the payer parent’s obligations with respect to special or extraordinary expenses.
Below, I will review each of Mr. Auer’s submissions, having regard to the GIC’s authority under the Divorce Act. I conclude that the Child Support Guidelines are intra vires the GIC.
C. The Child Support Guidelines Are Within the GIC’s Scope of Authority
(1) The GIC’s Statutory Grant of Authority Is Extremely Broad
Section 26.1(1) of the Divorce Act grants the GIC extremely broad authority to establish guidelines respecting orders for child support:
26.1 (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.
The use of the language “without limiting the generality of the foregoing” confirms that this plenary power is not limited by anything that follows in s. 26.1(1) (see Vavilov, at para. 110; West Fraser Mills, at para. 10).
However, this power is not unrestricted. Section 26.1(2) provides as follows:
(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.
Mr. Auer interprets “the principle that spouses have a joint financial obligation to maintain the children of the marriage” to mean that both parents must contribute equally to child‑related costs. I acknowledge that the principle under s. 26.1(2) is mandatory; this is made clear by Parliament’s use of the word “shall” (R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 4.05). However, a plain reading of s. 26.1(2) does not support Mr. Auer’s interpretation.
Section 26.1(2) does not require that each parent make an equal financial contribution to maintaining their children. Rather, it states that each parent has 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”. While a “joint financial obligation” means that the parents have a shared financial obligation to support their children, it does not necessarily mean that this obligation must be equal (see C.A. reasons, at para. 112). The constraint under s. 26.1(2) is expressed in broad terms. For example, it does not prescribe a particular method of estimating child‑related costs or state the percentage of child‑related costs that each parent must cover. Given this, while s. 26.1(2) constrains the GIC’s extremely broad grant of authority under s. 26.1(1), it does not restrict it as narrowly as Mr. Auer submits.
(2) The GIC Was Authorized Not To Take Into Account the Recipient Parent’s Income in Calculating the Table Amounts
Mr. Auer submits that the presumptive table amounts in the Child Support Guidelines violate the requirement in s. 26.1(2) that support awards be based on the parents’ “relative abilities to contribute” by ignoring the recipient parent’s income. In his view, the table amounts cannot be based on the parents’ “relative abilities to contribute” if they are based solely on the payer parent’s income.
The formula on which the table amounts are based assumes that the payer parent and recipient parent have the same income (chambers judge’s reasons, at para. 86). It only considers the payer parent’s income and seeks to determine the amount that must be transferred from the payer parent to the recipient parent in order to make both households equally well off (Department of Justice Canada, Child Support Team, Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report (1997) (“DOJ Report”), at p. 2). As our Court explained in D.B.S., the Child Support Guidelines move away from pure need‑based criteria towards an approach based on the payer parent’s income (para. 47). This approach shapes each parent’s free‑standing obligation to support their children commensurate with their income, “with the result that the total amount of child support is determined — and not merely divided — according to the income of the payor parent” (para. 48).
Adopting a formula for calculating the table amounts that does not expressly consider the recipient parent’s income falls within a reasonable interpretation of the authority granted to the GIC. It is reasonable to interpret this authority as being conferred as part of the broad grant under s. 26.1(1), which includes the authority to establish guidelines “respecting the way in which the amount of an order for child support is to be determined” and “respecting the determination of income for the purposes of the application of the guidelines”.
The formula selected by the GIC for calculating the table amounts was recommended by the Committee after extensive research and consultation. In its report, the Committee justified the decision regarding the recipient parent’s income in calculating the table amounts as follows:
Although the formula appears to be based solely on the non‑custodial parent’s income, this does not imply that the custodial parent does not contribute to the financial needs of the child. On the contrary — because the child lives with the custodial parent and shares the same living standard as this parent, the custodial parent will continue to pay for the remaining expenses in proportion to his/her income. [p. i]
The Committee considered different options for the formula and how the awards should change with the recipient parent’s income:
With some other formulas the award rises; with others it falls; while with still others it does not change at all. Thus, there is considerable disagreement over how awards should change with the custodial parent’s income. The Revised Fixed Percentage formula [which was recommended by the Committee] retains the principle common to all fixed percentage systems: the award does not vary with the income of the custodial parent. [p. ii]
The Committee explained that its recommended approach “is essentially child‑centred: the child benefits from the standard of living of the non‑custodial parent before the separation/divorce and should retain this benefit after the separation/divorce” (p. ii).
During the debates on Bill C‑41, the then Minister of Justice, Allan Rock, reiterated the Committee’s justifications. He explained that it is fair to assume that the recipient parent is supporting their child in a manner that is proportionate to their income, because the child lives with the recipient parent and their standards of living are inseparable (House of Commons Standing Committee on Justice and Legal Affairs, Evidence, No. 54, 2nd Sess., 35th Parl., October 21, 1996, at 17:10 to 17:15; Standing Senate Committee on Social Affairs, Science and Technology, Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, No. 17, 2nd Sess., 35th Parl., December 11 and 12, 1996).
As these justifications make clear, the formula for calculating the table amounts takes into account the ways in which the recipient parent contributes to the financial needs of the child, as required by s. 26.1(2). It does so by assuming that, because the child resides with the recipient parent, that parent will support the child in a manner that is proportionate to their income. This assumption is consistent with the objectives of the Child Support Guidelines, which include establishing a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents after separation (s. 1).
The parties do not dispute that recipient parents contribute to child‑related costs by virtue of living with the children. While some recipient parents may contribute a larger proportion of their income towards child‑related costs than others, it was open to the GIC, in establishing a nationwide regime for child support, to assume that recipient parents contribute to child‑related costs in proportion to their income. In reviewing the vires of the Child Support Guidelines, our Court must not assess the policy merits of that assumption to determine whether it is “necessary, wise, or effective in practice” (Katz Group, at para. 27, citing Jafari, at p. 604).
For these reasons, I conclude that an interpretation of the GIC’s broad authority to establish guidelines “respecting the way in which the amount of an order for child support is to be determined” and “respecting the determination of income for the purposes of the application of the guidelines” as including the authority to adopt a formula for calculating the table amounts based solely on the payer parent’s income, is reasonable.
(3) The GIC Was Authorized To Assume That Parents Spend the Same Linear Percentage of Their Income on Their Children
Mr. Auer submits that the Child Support Guidelines unreasonably assume that parents spend the same linear percentage of income on their children regardless of the parents’ income levels and the children’s ages. In his view, as income rises, the overall amount spent on children increases but the percentage of income spent on children decreases (A.F., at para. 138). He submits that this assumption results in payer parents paying a disproportionate share of child‑related costs.
The table amounts assume that parents spend the same linear percentage of income on their children. The table establishes a fixed monetary amount of support for payer parents whose annual income does not exceed $150,000. Where the payer parent’s annual income exceeds that amount, the amount payable is increased by a designated percentage of the payer parent’s income over $150,000 (Payne and Payne, at p. 382). However, s. 4(b)(ii) of the Child Support Guidelines authorizes a court to depart from the table amount in respect of the payer parent’s income above $150,000 if it considers the table amount to be “inappropriate” having regard to the “condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children”.
Mr. Auer submits that courts are unlikely to depart from a linear application of the table amounts despite having the discretion to do so (A.F., at para. 139). He asks our Court to consider this reality in assessing the validity of the Child Support Guidelines.
Under s. 26.1(1)(b) of the Divorce Act, the GIC is authorized to establish guidelines “respecting the circumstances in which discretion may be exercised in the making of an order for child support”. Thus, it was plainly open to the GIC to give courts the discretion to depart from the table amounts for annual payer parent incomes exceeding $150,000 if they consider those amounts to be “inappropriate”. Courts have the discretion to decide whether to depart from a linear application of the table amounts. How this discretion is exercised has no bearing on the legality or validity of the Child Support Guidelines.
Mr. Auer argues that the Child Support Guidelines fail to reflect the fact that parents spend different percentages of their income on children at different ages. The Child Support Guidelines do not consider the ages of the children, except when they are over the age of majority. However, the GIC’s authority under s. 26.1(1) of the Divorce Act, which includes the authority to establish guidelines “respecting the way in which the amount of an order for child support is to be determined”, can reasonably be interpreted as authorizing guidelines which do not take children’s specific ages into account when calculating child support awards. Mr. Auer has not met the burden of proving that the Child Support Guidelines are invalid on this basis (Katz Group, at para. 25).
(4) The GIC Was Authorized Not To Take Into Account Government Child Benefits Paid to the Recipient Parent in Calculating Child Support Awards
The formula used to calculate the table amounts does not include the federal Canada Child Benefit and the GST/HST rebate for children paid to the recipient parent (DOJ Report, at p. 5; Payne and Payne, at p. 121). Mr. Auer argues that these benefits increase the recipient parent’s standard of living and decrease the income needs created by the child (A.F., at para. 97). He submits that failing to consider them in calculating the table amounts causes the payer parent to overcontribute, contrary to the principle under s. 26.1(2) of the Divorce Act.
The Child Support Guidelines represent a move away from a purely needs‑based approach towards one that seeks to maximize the amount available to be spent on children while ensuring that payer parents can adequately support themselves (D.B.S., at para. 54; DOJ Report, at p. 1). Government benefits improve children’s welfare by increasing the ability of recipient parents to spend more on them than would otherwise be possible. These benefits “are deemed to be the government’s contribution to children and [are] not available as income to the receiving parent” (DOJ Report, at p. 5).
Section 26.1(1)(f) of the Divorce Act authorizes the GIC to establish guidelines “respecting the determination of income for the purposes of the application of the guidelines”. The GIC elected not to include government benefits paid to the recipient parent when determining income for the purposes of calculating the table amounts. That decision falls reasonably within the scope of the GIC’s broad authority. Again, it is not for our Court to assess the policy merits of that decision (Katz Group, at paras. 27‑28).
(5) The GIC Was Authorized Not To Take Into Account the Payer Parent’s Direct Spending When That Parent Exercises Less Than 40 Percent of Annual Parenting Time
The table amounts do not take into account the payer parent’s direct spending on the child; they “do not assume that the payor parent pays for the housing, food, or any other expense for the child” (Contino, at para. 52). However, s. 9 of the Child Support Guidelines provides that if each spouse exercises at least 40 percent of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account: (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared parenting time arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
Once it is established that a payer parent exercises 40 percent or more of annual parenting time, a court may consider the payer parent’s direct spending on the child under s. 9(b). Section 9(b) “recognizes that the total cost of raising children in shared custody situations may be greater than in situations where there is sole custody” (Contino, at para. 52 (emphasis in original)). It requires courts “to examine the budgets and actual child care expenses of each parent. These expenses will be apportioned between the parents in accordance with their respective incomes” (para. 53).
Mr. Auer submits that it is unreasonable for the table amounts to assume that payer parents do not spend directly on their children in addition to making support payments. In his view, failing to recognize that payer parents may spend directly on their children when they exercise between 0 and 39 percent of annual parenting time violates the principle under s. 26.1(2) of the Divorce Act that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities. He submits that the Child Support Guidelines are ultra vires on this basis.
The GIC is authorized under s. 26.1(1) of the Divorce Act to establish guidelines “respecting the way in which the amount of an order for child support is to be determined” and “respecting the circumstances in which discretion may be exercised in the making of an order for child support”. In my view, this authority permits the GIC to allow courts to consider payer parents’ direct spending on their children only when the payer parent exercises at least 40 percent of annual parenting time. Section 26.1(2) states only that parents have a “joint financial obligation” to maintain their children in accordance with their relative abilities to contribute. It does not require that each parent make an equal financial contribution to child‑related costs. Thus, the principle in s. 26.1(2) is not violated even if setting the threshold for considering payer parents’ direct spending on their children at 40 percent of annual parenting time results in some payer parents paying more than half of the child‑related costs.
I do not mean to suggest that payer parents overcontribute. However, it is important to keep in mind, as counsel for Ms. Auer explained during the hearing, that recipient parents bear many financial responsibilities that are an inherent part of providing primary care for a child (transcript, at pp. 45‑47). Because the child lives primarily with the recipient parent, the payer parent may not always share in these responsibilities.
Furthermore, s. 10(1) of the Child Support Guidelines provides that a court may, on either spouse’s application, award an amount of child support that is different from the amount determined under ss. 3 to 5, 8 or 9 if the court finds that the spouse making the request would otherwise suffer undue hardship. Section 10(2) sets out circumstances that may cause a spouse to suffer undue hardship. One such circumstance is that “the spouse has unusually high expenses in relation to exercising parenting time with a child”. Courts therefore retain the discretion to ensure that payer parents contribute to child‑related costs in accordance with their ability to do so without suffering undue hardship, including as a result of having unusually high expenses in relation to exercising parenting time.
Interpreting the enabling statute as authorizing the making of guidelines which set the threshold percentage for when a court may consider the increased costs of shared parenting time arrangements is reasonable, as it falls squarely within the GIC’s broad grant of authority and Mr. Auer has not demonstrated that it violates the principle in s. 26.1(2). As mentioned, whether the GIC’s decision was “necessary, wise, or effective in practice” is irrelevant in the context of a vires review (Katz Group, at para. 27, citing Jafari, at p. 604).
(6) The GIC Was Authorized To Establish a Separate Category of Special or Extraordinary Expenses
Section 3(1) of the Child Support Guidelines sets out the presumptive rule regarding child support awards: unless otherwise provided, the amount of a child support order for children under the age of majority is (a) the amount set in the applicable table and (b) the amount, if any, determined under s. 7 (special or extraordinary expenses).
Mr. Auer submits that adding s. 7 expenses to the table amounts in accordance with the presumptive rule results in the “double counting” of child expenses for which the payer parent is responsible because “[a]ll conceivable average costs are reflected in the table amount” (A.F., at paras. 121 and 128). He adds that the scale chosen by the GIC to calculate the table amounts “produced high child cost estimates and, therefore, the highest child support awards” (para. 123). Thus, Mr. Auer submits that the Child Support Guidelines result in the payer parent overcontributing to child‑related costs, contrary to s. 26.1(2) of the Divorce Act.
I reject Mr. Auer’s submission.
Mr. Auer’s submission is rooted in a purely needs‑based approach to child support. The underlying theory of a purely needs‑based regime is that “both parents should provide enough support to their children to meet their needs, and that they should share this obligation proportionate to their incomes” (D.B.S., at para. 45). A purely needs‑based approach begins by calculating the child‑related costs. It then apportions those costs between the parents. If the amount of child support were to be determined solely on the basis of the child’s needs, it would be problematic for the presumptive rule to result in the “double counting” of certain special or extraordinary expenses.
However, the Child Support Guidelines have eschewed a purely needs‑based approach to child support (D.B.S., at para. 54). The Child Support Guidelines seek to ensure that the child benefits as much as possible from the income of both parents, in accordance with their relative abilities to contribute. Support awards recognize that the child benefitted from the standard of living of the payer parent pre‑separation and should continue to retain this benefit post‑separation (Committee, at p. ii; R. Finnie, C. Giliberti and D. Stripinis, An Overview of the Research Program to Develop a Canadian Child Support Formula (1995), at p. 28). As the DOJ Report explains at p. 1:
The concept of “cost of raising children” is an illusory theoretical construct. Spending on children is not fixed; it changes as the income of either parent changes. Families with higher incomes spend more on their children than do families of lower income. In the post separation arrangement, the Federal Child Support Guidelines aim to approximate, as closely as possible, the spending on the children that occurred in the pre‑separation family.
In short, the Child Support Guidelines begin with the payer parent’s income and determine the amount of support that that parent must pay to ensure that the child continues to benefit from their income post‑separation. The Child Support Guidelines do not determine the child’s costs up front and then ask the payer parent to cover a portion of them. It is assumed that “any financial contribution from the [payer] parent will typically be used to improve the child’s circumstances” (Payne and Payne, at p. 7).
The parent applying for s. 7 expenses must demonstrate that the expenses are necessary in relation to the child’s best interests and are reasonable in relation to the means of the spouses and the child as well as the family’s spending pattern prior to the separation. Where the recipient parent has applied for s. 7 expenses, the payer parent may challenge the necessity or reasonableness of those expenses. A payer parent could argue that the alleged s. 7 expenses are already covered by the table amount. However, it is ultimately up to the court to determine whether the applying parent has established that the s. 7 expenses they seek are necessary and reasonable.
The GIC’s broad authority under s. 26.1(1) of the Divorce Act to establish guidelines “respecting the way in which the amount of an order for child support is to be determined” clearly entitled the GIC to adopt guidelines that do not focus purely on the child’s needs but instead seek to ensure that the child continues to benefit from the payer parent’s income in accordance with that parent’s ability to contribute. Further, the GIC’s authority to establish guidelines “respecting the circumstances in which discretion may be exercised in the making of an order for child support” entitled the GIC to grant courts the discretion to determine whether to include certain special or extraordinary expenses in a child support award.
Thus, contrary to Mr. Auer’s assertion, it is not problematic if there is some overlap between the expenses contemplated in the table amounts and “special or extraordinary” expenses under s. 7. The child continues to benefit from the payer parent’s income in accordance with that parent’s ability to contribute. Mr. Auer has not demonstrated that the potential for “double counting” s. 7 expenses arises from an unreasonable interpretation of the authority granted to the GIC in light of the relevant constraints, and has not met the burden of proving that the Child Support Guidelines are ultra vires.
VII. Conclusion
The reasonableness standard under the Vavilov framework presumptively applies when reviewing the vires of subordinate legislation. Katz Group continues to provide helpful guidance. However, for subordinate legislation to be ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be “irrelevant”, “extraneous” or “completely unrelated” to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with robust reasonableness review and would undermine Vavilov’s promise of simplicity, predictability and coherence.
The Child Support Guidelines fall reasonably within the GIC’s scope of authority under s. 26.1 of the Divorce Act, having regard to the relevant constraints. Under s. 26.1(1), the GIC is granted extremely broad authority to establish guidelines respecting child support. Section 26.1(2) constrains this authority by requiring that the guidelines 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. The Child Support Guidelines respect this constraint.
The GIC was entitled to choose an approach to calculating child support that (1) does not take into account the recipient parent’s income; (2) assumes that parents spend the same linear percentage of income on their children regardless of the parents’ levels of income and the children’s ages; (3) does not take into account government child benefits paid to recipient parents; (4) does not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) risks double counting certain special or extraordinary expenses. Each of these decisions fell squarely within the scope of the authority delegated to the GIC under the Divorce Act.
The appeal is dismissed with costs to the respondent Aysel Igorevna Auer.
Cases cited
- Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care) 2013 SCC 64 para 28, para 34 ¶ 2, ¶ 15
- Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 para 66, paras 67, para 137, paras 108 and 110, para 52, para 34, para 143, para 17, para 88, para 11, para 53 ¶ 2, ¶ 3, ¶ 4, ¶ 10, ¶ 13, ¶ 15, ¶ 17, ¶ 19, ¶ 20, ¶ 21, ¶ 22, ¶ 23, ¶ 24, ¶ 26, ¶ 27, ¶ 31, ¶ 32, ¶ 33, ¶ 34, ¶ 35, ¶ 36
- Green v. Law Society of Manitoba 2017 SCC 20 para 28, para 44 ¶ 22, ¶ 26, ¶ 33, ¶ 40, ¶ 52, ¶ 62
- West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) 2018 SCC 22 para 12, para 59, paras 12 and 59, para 23, para 10 ¶ 22, ¶ 33, ¶ 40, ¶ 59, ¶ 62, ¶ 76
- Canada (Canadian Human Rights Commission) v. Canada (Attorney General) 2018 SCC 31 para 111 ¶ 22
- Catalyst Paper Corp. v. North Cowichan (District) 2012 SCC 2 paras 15 and 25 ¶ 26, ¶ 62
- United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) 2004 SCC 19 para 8 ¶ 29
- Jafari v. Canada (Minister of Employment and Immigration) 2 F.C. 595 p 604 ¶ 29, ¶ 56, ¶ 88, ¶ 104
- Thorne's Hardware Ltd. v. The Queen 16381-1983-02-08 pp 112, para 28, para 89, para 105 ¶ 29, ¶ 47, ¶ 48, ¶ 56, ¶ 59
- Terrigno v. Calgary (City) 2021 ABQB 41 para 62 ¶ 31
- Canada (Attorney General) v. Power 2024 SCC 26 paras 98 and 209 ¶ 32
- R. v. Kirkpatrick 2022 SCC 33 para 202 ¶ 32
- References re Greenhouse Gas Pollution Pricing Act 2021 SCC 11 para 87 ¶ 33
- Reference re Impact Assessment Act 2023 SCC 23 para 283 ¶ 33, ¶ 40
- Canadian Council for Refugees v. Canada (Citizenship and Immigration) 2023 SCC 17 para 54, para 51 ¶ 33, ¶ 40, ¶ 43
- La Rose v. Canada 2023 FCA 241 para 26 ¶ 33
- Vavilov (see Portnov v. Canada (Attorney General) 2021 FCA 171 paras 20 ¶ 36
- Innovative Medicines Canada v. Canada (Attorney General) 2022 FCA 210 para 35, para 30, para 100 ¶ 36, ¶ 38, ¶ 48
- Vavilov Vavilov ¶ 38, ¶ 39, ¶ 41, ¶ 43, ¶ 45, ¶ 47, ¶ 48, ¶ 49, ¶ 51, ¶ 52, ¶ 53, ¶ 55, ¶ 59, ¶ 114
- Vavilov Vavilov, at paras. 108 and 110 paras 108 and 110 ¶ 40
- References re Greenhouse Gas Pollution Pricing Act References re Greenhouse Gas Pollution Pricing Act, at para. 87 para 87 ¶ 40
- Reference as to the Validity of the Regulations in Relation to Chemicals Enacted by Order scr-1943-1 p 13, para 88 ¶ 43
- 2022 ABCA 375 2022 ABCA 375 ¶ 44
- 2022 ABCA 381 2022 ABCA 381 ¶ 44, ¶ 46
- Vavilov Vavilov, at para. 13 para 13 ¶ 46
- British Columbia (Attorney General) v. Le 2023 BCCA 200 para 94 ¶ 46
- Vavilov Vavilov, at para. 109 para 109 ¶ 47
- Katz Group Katz Group, at para. 28 para 28 ¶ 47, ¶ 56
- Vavilov Vavilov, at para. 20 para 20 ¶ 49
- Minister of Indian Affairs and Northern Development v. Ranville et al. 16218-1982-09-28 p 528, para 101 ¶ 49, ¶ 51, ¶ 52
- Vavilov Vavilov, at para. 99 para 99 ¶ 50
- Katz Group Katz Group, at para. 25 para 25 ¶ 50, ¶ 72, ¶ 94
- Vavilov Vavilov, at paras. 100 and 109 paras 100 and 109 ¶ 50
- Vavilov Vavilov, at para. 137 para 137 ¶ 52, ¶ 54
- Roncarelli v. Duplessis scr-1959-121 ¶ 54
- Katz Group Katz Group, at para. 27 para 27 ¶ 56, ¶ 88, ¶ 104
- Vavilov Vavilov, at paras. 108 paras 108 ¶ 61
- Vavilov Vavilov, at para. 110 para 110 ¶ 62, ¶ 76
- Vavilov Vavilov, at para. 108 para 108 ¶ 62
- Vavilov Vavilov, at para. 111 para 111 ¶ 63
- Katz Group Katz Group, at paras. 45 paras 45 ¶ 63
- Montréal (City) v. Montreal Port Authority 2010 SCC 14 para 40 ¶ 63
- Dunsmuir v. New Brunswick 2008 SCC 9 para 74 ¶ 63
- Communities) v. Farwaha 2014 FCA 56 paras 93, para 112 ¶ 63, ¶ 79
- Vavilov Vavilov, at paras. 120 paras 120 ¶ 64
- Rizzo & Rizzo Shoes Ltd. (Re) 24711-1998-01-22 para 21 ¶ 64
- Michel v. Graydon 2020 SCC 24 para 46, para 48, para 49 ¶ 67, ¶ 68
- Childs v. Childs 107 N.B.R. (2d) 176 para 6 ¶ 67
- Francis v. Baker 26562-1999-09-16 paras 39, para 39, para 1, para 40, para 56, para 58 ¶ 68, ¶ 69, ¶ 70, ¶ 71, ¶ 72
- D.B.S. v. S.R.G 2006 SCC 37 para 38, para 54, para 45, para 47, para 48 ¶ 69, ¶ 81, ¶ 96, ¶ 108, ¶ 109
- Contino v. Leonelli-Contino 2005 SCC 63 para 33, para 52, para 53 ¶ 71, ¶ 98, ¶ 99
- A.F. A.F., at para. 57 para 57 ¶ 72
- A.F. A.F., at para. 138 para 138 ¶ 90
- A.F. A.F., at para. 139 para 139 ¶ 92
- A.F. A.F., at para. 97 para 97 ¶ 95
- Katz Group Katz Group, at paras. 27 paras 27 ¶ 97
- A.F. A.F., at paras. 121 and 128 paras 121 and 128 ¶ 106
Statutes and regulations cited
-
- s. 26.1 ¶ 5, ¶ 115
- s. 26.1(1) ¶ 5, ¶ 8, ¶ 11, ¶ 13, ¶ 68, ¶ 75, ¶ 76, ¶ 79, ¶ 82, ¶ 94, ¶ 101, ¶ 112, ¶ 115
- s. 26.1(2) ¶ 5, ¶ 8, ¶ 12, ¶ 13, ¶ 72, ¶ 77, ¶ 78, ¶ 79, ¶ 80, ¶ 87, ¶ 95, ¶ 100, ¶ 101, ¶ 104, ¶ 106, ¶ 115
- s. 7 ¶ 12, ¶ 70, ¶ 105, ¶ 106, ¶ 111, ¶ 113
- s. 1 ¶ 69, ¶ 87
- s. 3 ¶ 70, ¶ 103
- s. 3(2) ¶ 70
- s. 4 ¶ 70
- s. 9(b) ¶ 70, ¶ 99
- s. 10 ¶ 70
- s. 4(b)(ii) ¶ 91
- s. 26.1(1)(b) ¶ 93
- s. 26.1(1)(f) ¶ 97
- s. 9 ¶ 98, ¶ 103
- Section 9(b) ¶ 99
- s. 10(1) ¶ 103
- s. 5 ¶ 103
- s. 8 ¶ 103
- s. 10(2) ¶ 103
- s. 3(1) ¶ 105
-
Unresolved citations
- para. 123(b) ¶ 45