|
|
Law - FACT application refused
[1] This is a motion appealing the Order of the Prothonotary
dated November 18, 2003, striking the statement of claim in
both T-1473-03 and T-1474-03.
Preliminary Matter
[2] The plaintiffs have brought a motion that the parties
in both cases should be joined in a common action.
[3] After discussion, given that the plaintiffs' record was
not complete, given that counsel for the defendant opposed
the motion but would not file his record until the plaintiffs'
record was completed, and given the particular circumstances
of this case, the parties have agreed to adjourn this motion
sine die.
FACTS
The Parties
Plaintiffs
(T-1473-03)
[4] L'Action des nouvelles conjointes du Québec is
a corporation registered under the laws of Quebec. Its objective
is to rally and give assistance to couples formed by previously
married spouses who have been negatively impacted by iniquities
within the judicial system.
(T-1474-03)
[5] L'Après-Rupture is a corporation registered under
the laws of Quebec. Its mission is to defend and promote the
rights of children in maintaining strong relationships with
their biological and extended family and to assist fathers
and parents in the promotion of fatherhood and the family.
The group is also concerned with developing a social conscience
of the negative impact of the rupture of the conventional
family.
[6] Fathers are Capable Too: Parenting Association, also known
as F.A.C.T., is a non-profit company registered under the
laws of Ontario. Its objective is to provide support and counselling
to non-custodial parents involved in the divorce or separation
process, and to promote shared parenting.
[7] Legal Kids is a non-profit company registered under the
laws of Alberta, whose objective is to ensure that children's
rights are respected and protected during the divorce of their
parents.
The defendant
[8] Since the plaintiffs seek a declaration of invalidity
against an Act of Parliament, the defendant is Her Majesty
the Queen in Right of Canada.
Statement of Claim
[9] The plaintiff in action T-1473-03 sought a declaration
that section 26.1 of the Divorce Act, R.S. 1985, c. 3 (2nd
Supp.) (Act), and the Guidelines adopted thereunder, were
inconsistent with sections 7, 15 and 28 of the Canadian Charter
of Human Rights, Schedule B to the Canada Act 1982 (U.K.)
1982, c. 11, (Charter) and thus of no force and effect to
the extent of that inconsistency. The plaintiff also sought
a declaration that section 26.1 and the Guidelines were ultra
vires the Parliament of Canada, since they deal with Property
and Civil Rights, a provincial head of jurisdiction under
section 92(13) of the Constitution Act, 1867. Finally, the
plaintiff sought a number of other declarations, generally
to the effect that the common law, the Canadian Bill of Rights,
1960, c.44 (Bill of Rights) and the Charter require another
approach than that of the Guidelines to determining the amounts
that should be paid in child support. For example, the parent
receiving support on behalf of the child should be required
to account for all expenditures made from the amount received,
there should be joint spousal decision-making regarding all
expenditures of child support awarded under the Act, or a
parent should be precluded from bringing an action for child
support on behalf of a legally competent child who has reached
the age of majority.
[10] In action T-1474-03, the plaintiffs sought a declaration
that the test set forth in subsections 16(1), 16(2), 16(8)
and 16(10) of the Act was inconsistent with subsections 2(b)
and 2(d) and sections 7, 12, 15 and 28 of the Charter as well
as contrary to subsections 1(a) and 1(b) of the Bill of Rights.
Essentially, the impugned subsections under section 16 of
the Act, by enshrining the "best interest of the child"test
and by ignoring parents' right to freedom from state interference,
deny parents their legal rights to a relationship with their
children, to property and to privacy under the Charter, the
Bill of Rights and the common law. The test, according to
the plaintiffs, is inherently biased against fathers. Moreover,
it interferes with the right to privacy and against state
interference which is granted to intact families but is lost
to families undergoing the divorce process.
[11] The evidence in both cases shows that sole custody is
awarded by courts to mothers in the vast majority of cases;
since the non-custodial parent must pay child support to the
custodial parent under the Guidelines (unless financial circumstances
indicate the contrary), men find themselves paying child support
in a much higher proportion than women.
[12] According to the plaintiffs, the calculation of child
support is based on erroneous premises, and amounts to an
unfair transfer of wealth, often to the benefit of the ex-spouse
rather than the child for which support is paid. The plaintiffs
also contend that the bias of the system, which favours awarding
sole custody to the mother rather than joint custody, deprives
them of a meaningful relationship with their children.
[13] This is a very brief summary of the arguments of the
plaintiffs, in both cases, but I believe it reflects the essential
elements of their respective statements of claim: Sections
16 and 26.1 of the Act, both because of their language and
of their implementation, discriminate against men and deprive
them of their equality, privacy and property rights under
the Charter, the common law and the Bill of Rights, as well
as their right to freedom of association and expression under
the Charter. Moreover, by determining how private contracts
should be established (i.e. the arrangements between parents
post-divorce) and by imposing payments on fathers, the Act
exceeds the authority of Parliament and enters the realm of
Property and Civil Rights, which is under provincial jurisdiction.
Motion of the defendant
[14] The defendant brought a motion to have both cases dismissed;
the motion was heard on October 6, 2003. The defendant stated
the following grounds for dismissing the case:
1) The plaintiffs do not have standing in the actions;
2) The Federal Court is not the appropriate forum to adjudicate
the matter; and
3) The plaintiffs have shown no reasonable cause of action.
Decision of Prothonotary Morneau
[15] Prothonotary Morneau allowed the motion, basing his decision
mainly on the Supreme Court of Canada decision Canadian Council
of Churches v. Canada (M.E.I.), [1992] 1 S.C.R. 236 (Canadian
Council of Churches), and found that the plaintiffs did not
have standing.
[16] In Canadian Council of Churches, the Supreme Court stated,
as part of the test to determine whether a public interest
group may have standing as plaintiff before a court, that
there must be no other reasonable and effective way to bring
the issue before the court. The Supreme Court emphasized in
that decision that judicial economy, and the need to ensure
access to the courts by individual plaintiffs, severely restrain
the ability for groups representing diverse interests to come
to the court to have issues decided. This restriction, in
the Supreme Court's opinion, should remain. Thus, it is preferable
for constitutional challenges to be raised by parties before
the courts, since this is a better allocation of judicial
time and resources.
[17] Prothonotary Morneau found that, on a balance of probabilities,
parties to divorce proceedings before the court do have the
opportunity to make submissions on the Charter, and in fact,
have already done so on a number of occasions. Thus, according
to the Prothonotary's decision, it is not necessary for the
plaintiffs to come before this Court to argue the unconstitutionality
of sections of the Divorce Act, since there are other reasonable
and effective means of raising these issues in individual
cases.
[18] Given the fact that he had ruled that the plaintiffs
did not have standing in the action, Prothonotary Morneau
did not address the other two grounds for striking the claim
that had been raised by the defendant, namely the appropriate
forum for such an action and whether the plaintiffs have a
reasonable cause of action.
ISSUES
[19] The plaintiffs have appealed the decision of Prothonotary
Morneau, as being unfounded in law; according to the plaintiffs,
there is no basis in law on which the statement of claim may
be struck. The plaintiffs maintain that they do have standing,
that they do have a reasonable cause of action, and that the
Federal Court is the proper forum for their action.
[20] Both parties have agreed that this Court is hearing the
matter de novo. This is consistent with Canada v. Aqua-Gem
Investments Ltd., [1993] 2 F.C. 425 (C.A.), where the Court
stated: "Where [discretionary orders of the prothonotary]
raise questions vital to the final issue of the case, a judge
ought to exercise his own discretion de novo."
[21] Thus, the Court is asked to consider the issue raised
by the plaintiffs, that there is no basis in law for striking
the statement of claim, as well as the issues raised by the
defendant in the motion that was ruled upon by Prothonotary
Morneau. The issues in the instant case can be stated as follows:
1) Is there a basis in law for striking the statement of claim?
2) Do the plaintiffs have standing in the actions?
3) Is the Federal Court the appropriate forum to adjudicate
the matter?
4) Do the plaintiffs have a reasonable cause of action?
LEGISLATION
[22] For greater ease of reading, the legislation referred
to is found in the appendix.
ANALYSIS
1) Is there a basis in law for striking the statement of claim?
[23] The plaintiffs argue that there are no grounds under
either Rule 208 or Rule 221 to strike the statement of claim.
However, in Canadian Council of Churches, supra, the originating
motion which lead to the Supreme Court decision to strike
the statement of claim for want of standing was based on Rule
419 which has become Rule 221 in the Federal Court Rules,
1998. Our Court has since used the Supreme Court decision
as a way of interpreting Rule 221. In Munzel v. Canada, [1998]
F.C.J. No. 1231 (T.D.), Prothonotary Hargrave writes at paragraph
15:
While I have not used rule 221 of the Federal Court Rules
to strike out the action as, per se, disclosing no reasonable
cause of action, as scandalous, frivolous or vexatious, or
as an abuse, rule 221 (formerly rule 419) may be utilized
to strike out pleadings where the plaintiff has no standing:
see Canadian Council of Churches v. Canada (1989), 27 F.T.R.
129 (T.D.); (1990), 106 N.R. 61 (F.C.A.); and [1992] 1 S.C.R.
236.
Thus I find that there is a basis in law for striking the
statement of claim.
2) Do the plaintiffs have standing in the actions?
[24] Before the adoption of the Charter, the issue of public
interest standing was dealt with extensively in a trilogy
from the Supreme Court of Canada: Thorson v. Attorney General
of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors
v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada
v. Borowski, [1981] 2 S.C.R. 575.
[25] Prothonotary Hargrave, writing in Daniels v. Canada (Minister
of Indian Affairs and Northern Development), [2002] 4 F.C.
550 (T.D.), summarized thus the test that was developed through
those three cases:
11 The Supreme Court of Canada has considered the issue of
standing in a trilogy of cases, Thorson v. Attorney General
of Canada et al., [1975] 1 S.C.R. 138; Nova Scotia Board of
Censors v. McNeil, [1976] 2 S.C.R. 265 and Minister of Justice
of Canada et al. v. Borowski, [1981] 2 S.C.R. 575. In the
latter Mr. Justice Martland, speaking for the majority of
the Supreme Court, summarized the principles, as to standing,
arising out of Thorson and of McNeil (at page 598):
I interpret these cases as deciding that to establish status
as a plaintiff in a suit seeking a declaration that legislation
is invalid, if there is a serious issue as to its invalidity,
a person need only to show that he is affected by it directly
or that he has a genuine interest as a citizen in the validity
of the legislation and that there is no other reasonable and
effective manner in which the issue may be brought before
the Court.
In Borowski, the plaintiff, as an individual taxpayer, sought
to obtain a declaration that certain provisions of the Criminal
Code [R.S.C. 1970, c. C-34] were inoperative. To do so he
had to meet the conditions, set out by Mr. Justice Martland
above, as to standing: first, that there was a serious issue;
second, that he was directly affected or genuinely interested
as a citizen; and third, that there was no other reasonable
and effective way to bring the issue before a court.
[26] After the adoption of the Charter in 1982, the test developed
in the trilogy was confirmed in the leading case on the issue
of standing, Canadian Council of Churches, supra. In that
case, the Canadian Council of Churches sought to have the
new immigration provisions invalidated on the basis that they
were unconstitutional. The defendant Crown sought to have
the motion struck, because of lack of standing. The motion
was dismissed at trial, and granted partly at the Federal
Court of Appeal. The Supreme Court of Canada struck out the
claim entirely, for want of standing.
[27] The first two parts of the test were met, according to
the Supreme Court of Canada: there was a serious issue to
be tried, and the plaintiff had a genuine interest in the
matter. However, the action failed on the third count, because
there was another reasonable and effective way to bring the
issue before the Court, through individual refugee claims.
The Federal Court of Appeal had taken judicial notice of the
fact that appeals based on constitutional grounds were being
made to the Court.
[28] The Supreme Court in Canadian Council of Churches, supra,
stressed the fact that although public interest standing may
be granted where appropriate, the courts must be careful to
balance access to the courts with preserving judicial resources.
Thus the court will be more than reluctant to grant standing
where the matter could be pursued in the context of private
litigation. At paragraphs 35 and 36, Justice Cory, writing
on behalf of the Court, stated:
However, I would stress that the recognition of the need to
grant public interest standing in some circumstances does
not amount to a blanket approval to grant standing to all
who wish to litigate an issue. It is essential that a balance
be struck between ensuring access to the courts and preserving
judicial resources. It would be disastrous if the courts were
allowed to become hopelessly overburdened as a result of the
unnecessary proliferation of marginal or redundant suits brought
by a [sic] well-meaning organizations pursuing their own particular
cases certain in the knowledge that their cause is all important.
It would be detrimental, if not devastating, to our system
of justice and unfair to private litigants.
The whole purpose of granting status is to prevent the immunization
of legislation or public acts from any challenge. The granting
of public interest standing is not required when, on a balance
of probabilities, it can be shown that the measure will be
subject to attack by a private litigant. The principles for
granting public standing set forth by this Court need not
and should not be expanded.
[29] The purpose of granting status is explicitly stated:
to prevent the immunization of legislation or public acts
from a court challenge. Therefore, if it can be shown that
the impugned legislation may be or has in fact been challenged
through private litigation, a group seeking to attack in court
will not be granted standing, because to do so would overextend
the resources of the courts.
[30] In their memorandum, the plaintiffs argue that it would
be unfair to expect of litigants embroiled in painful divorce
proceedings to burden themselves further with constitutional
arguments. The plaintiffs cite Justice Cullen in Friends of
the Island Inc. v. Canada (Minister of Public Works), [1993]
F.C.J. No. 781, to argue that the possibility of private litigation
should not be merely theoretical, but rather that there should
be a "reasonable degree of probability" (paragraph
214) before standing is refused on the basis that other means
exist to bring a constitutional issue before the court.
[31] In that case, Justice Cullen ruled that the applicant
organization did have standing to raise the issue of the constitutionality
of the fixed link between Canada and Prince-Edward-Island,
because no other litigant was likely to raise the issue, which
was a valid one.
[32] The plaintiffs give a long list of cases where groups
are given standing to make representations to the court. I
will briefly review some of those cases.
Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607
[33] Mr. Finlay sought to have the federal-provincial arrangements
under the Canada Assistance Program declared invalid, because
he believed they were misapplied by the province. He himself
was a beneficiary, and was being penalized by the repayment
of a municipal debt. In this case, Mr. Finlay sought to speak
on behalf of other recipients, but he himself was also directly
concerned.
Canadian Foundation for Children, Youth and the Law v. Canada
(Attorney General), [2004] S.C.J. No. 6, 2004 SCC 4
[34] In that case, the Canadian Foundation for Children, Youth
and the Law sought a declaratory relief against the provision
in the Criminal Code which provides a defence of reasonable
force for parents and guardians for administering physical
discipline. The issue of standing was not raised. As the defendant
in the instant case noted in his memorandum, there was no
other reasonable or probable way to raise the issue, since
the people who could use the defence would be unlikely to
challenge it, and children do not have standing before the
courts.
EGALE Canada Inc. v. Canada (Attorney General), [2003] B.C.J.
No. 994
[35] Again, the issue of standing was not raised. In this
case, EGALE was one of several appellants; all others were
gays and lesbians who wanted to get married. A single issue
was identified: whether the common law bar to homosexual marriage
was constitutional under section 15 of the Charter.
Daniels v. Canada, (Minister of Indian Affairs and Northern
Development), [2002] 4 F.C. 550 (T.D.)
[36] Metis and Non-Status Indians were seeking a declaration
of rights from the government. The defendant Minister sought
a motion to strike on the basis that they had no standing.
Prothonotary Hargrave found that there was a serious issue,
that they had a genuine interest, and that there was no other
reasonable way for them to assert their rights:
24 Finally, there is the issue of whether there is some other
reasonable and effective manner in which the plaintiffs' issue
may be brought before the Court. Clearly, neither the federal
Crown nor the provincial Crown are the least bit interested
in negotiating with the Métis and with non-status Indians
who, as a result, are trapped in a jurisdictional vacuum between
Canada and the provinces. Therefore, even though "the
Crown is under a moral, if not a legal, duty to enter into
and conduct those negotiations in good faith", as Chief
Justice Lamer pointed out in Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010, at paragraph 186, the issues in this
proceeding are highly unlikely to come before the Court in
the context of a suit over a specific right.
Environmental Resource Centre v. Canada (Minister of the Environment),
[2001] F.C.J. No. 1937 (T.D.)
[37] An environmental group was acting to protect fish habitat.
The issue of standing was not raised. In such a case, it would
appear rather obvious that unless an environmental group raises
an issue, no one else will speak on behalf of the environment.
Professional Institute of the Public Service of Canada v.
Canada (Customs and Revenue Agency), [2001] F.C.J. No. 104
(T.D.)
[38] Standing was not at issue. The Union was acting on behalf
of its members as the duly certified bargaining agent.
Human Rights Institute of Canada v. Canada (Minister of Public
Works and Government Services), [2000] 1 F.C. 475 (T.D.)
[39] On an issue of expropriation of public lands, the Court
ruled that the applicants had standing, since no private litigation
could be expected in the case. The Court quoted [at page 492]
Cory J. in Canadian Council of Churches (pp.252-253) :
The granting of public interest standing is not required when,
on a balance of probabilities, it can be shown that the measure
will be subject to attack by a private litigant.
Harris v. Canada , [2000] 4 F.C. 37 (C.A.)
[40] Mr. Harris sought declaratory relief, alleging maladministration
of the Income Tax Act by Revenue Canada, for advance rulings
given by Revenue Canada allowing assets to leave Canada untaxed.
The Court ruled that Mr. Harris did have standing, as an interested
taxpayer, since the issue was a serious one and given that
it was unlikely the beneficiary of the advance ruling would
challenge it in Court.
[41] The rule, as stated by the Supreme Court of Canada and
interpreted by lower courts, seems to be that public interest
standing will be granted where no individual litigant can
be expected to go forward with a constitutional challenge.
Personal hardship, as can be seen from Canadian Council of
Churches, supra, is not a criteria which the Supreme Court
will take into account in this assessment of standing. At
page 254, Justice Cory states, speaking of the refugees:
... each one of them has standing to initiate a constitutional
challenge to secure his or her own rights under the Charter.
The applicant Council recognizes that such actions could be
brought but argues that the disadvantages which refugees face
as a group preclude their effective use of access to the court.
I cannot accept that submission.
[42] The fact that the Federal Court of Appeal had taken judicial
notice of challenges by refugee claimants was a factor in
Canadian Council of Churches, supra. In his decision, Prothonotary
Morneau stated that on a balance of probabilities, it could
be expected that private litigants in divorce proceedings
would raise constitutional challenges if warranted. He cited
a few decisions from the Supreme Court to bolster this assertion.
I concur. A quick review of cases in provincial superior and
appeal courts confirms that constitutional issues are indeed
raised in the course of divorce proceedings. Here is but a
partial list:
Whalley v. Barsalou, [1990] N.B.J. No. 1148 (N.B.C.Q.B.)
Koch v. Koch, [1985] S.J. No. 760 (S.C.Q.B.)
Thurber v. Thurber, [2002] A.J. No. 992 (A.C.Q.B.)
G.B. c. M.B.,Droit de la famille - 955 (SOQUIJ), [1991] A.Q.
no 202 (C.A.Q.)
Qually v. Qually, [1988] S.J. No. 736 (Sask. C.A.)
Kelman v. Stibor, [1998] O.J. No. 2999 (O.C.J.)
Michie v. Michie, [1997] S.J. No. 668 (S.C.Q.B.)
Souliere v. Leclair, [1998] O.J. No. 1393 (O.C.J. G.D.)
Massingham-Pearce v. Konkolus, [1995] A.J. No. 404 (A.C.Q.B.)
Dirk v. Dirk, [2002] S.J. No. 437 (S.C.Q.B.)
Keyes v. Keyes, [1995] M.J. No. 441 (M.C.A.)
Hockey v. Hockey, [1989] O.J. No. 1036 (O.H.C.J.(Div.Ct.))
[43] Thus, although it may be that serious issues are at stake
and that the groups do have a genuine interest in the matter,
I find that the plaintiffs have not satisfied the third part
of the test, that there exists no reasonable and effective
way to raise the issues before the courts other than by way
of the plaintiffs' action. On the contrary, I believe that
those issues can be raised and have been raised to a certain
extent before the courts.
[44] While I sympathize with the plaintiffs' argument that
arguing constitutional matters is an additional burden at
a time the litigants are facing emotional turmoil and are
seeking what is best for their children, I have not been convinced,
on the balance of probabilities, that such a constitutional
challenge can never occur. The fact that very few parents
would raise some of the issues suggested by the plaintiffs
because of the lengthy process and the possibility to have
a decision too late to be appropriate is, as far as I am concerned,
pure speculation. Cases have come before the courts and decisions
have been made by the courts; both parties provided a number
of cases to that effect.
[45] I thus find that the plaintiffs do not have standing
in the actions.
3) Is the Federal Court the appropriate forum to adjudicate
the matter?
[46] The Federal Court is not the appropriate forum to challenge
provisions of the Divorce Act, for two main reasons: First,
Parliament has granted jurisdiction on divorce to provincial
superior courts, which therefore have a great deal more experience
than the Federal Court in hearing cases under the Act and
applying the law. Secondly, according to Reza v. Canada, [1994]
2 S.C.R. 394, even if there is concurrent jurisdiction in
a matter, it is preferable for the Court mandated by the regulatory
scheme of the Act to hear matters under that Act. It could
be argued that the "court of competent jurisdiction",
terminology used in both the Charter section 24 and the Divorce
Act section 16, is more likely the superior court of a province
rather than the Federal Court.
[47] The Federal Court is given a very narrow mandate by the
Divorce Act. In the unlikely event that a divorce action would
be started on the same day in two different provinces, and
if after thirty days one or the other party has not withdrawn
his or her action, the Federal Court has jurisdiction to hear
the divorce case. This occurrence is extremely rare (one case
found in Quick Law, Williamson v. Williamson, [1977] 1 F.C.
38). The plaintiffs argue that the Federal Court has jurisdiction
to hear challenges of federal legislation. This is undoubtedly
the case, but a court challenge cannot be severed of its subject
matter.
[48] In Reza, supra, the plaintiff sought a remedy before
the Ontario courts after losing his case under the Immigration
Act before the Federal Court. The Supreme Court of Canada
ruled that the motions judge had been right to decline jurisdiction
over the matter for the Ontario court. Although the Ontario
court did have concurrent jurisdiction to protect Charter
rights, it was not in the interest of justice to allow plaintiffs
to leave the jurisdiction of the Federal Court to proceed
in another court, when the whole scheme of the Act had been
set up to give jurisdiction to, and thus concentrate expertise
in, the Federal Court. In the instant case, the same reasoning
applies, albeit in reverse. The Federal Court has little expertise
in divorce matters, whereas all the superior courts, because
of the jurisdiction granted by the Act, have in-depth knowledge
and experience of divorce and all ancillary matters. This
is clearly a case where the forum conveniens is the superior
court of the provinces, not the Federal Court of Canada.
4) Do the plaintiffs have a reasonable cause of action?
[49] In Canadian Council of Churches, supra, Justice Cory
refers to Finlay v. Canada (Minister of Finance), [1986] 2
S.C.R. 607, to state that the issues of standing and reasonable
cause of action are often closely related. The following quote
is from Finlay at paragraph 38:
The issues of standing and reasonable cause of action are
obviously closely related, and as acknowledged by counsel
for the appellants, tend in a case such as this to merge.
Indeed, I question whether there is a true issue of reasonable
cause of action distinguishable, as an alternative issue,
from that of standing.
I believe the instant case provides a good example of this
proposition.
[50] The defendant raised the point that as a corporation
under the laws of Quebec, the plaintiff in T-1473-03, L'Action
des nouvelles conjointes du Québec, did not have standing
to challenge Federal Guidelines that do not apply in Quebec.
Under subsection 2(1) of the Act, it is possible for a provincial
government to adopt guidelines for child support, which was
done, in the case of Quebec, in 1997 (see appendix). Thus,
the plaintiff has no standing, since it is not covered by
the Federal Guidelines, nor any cause of action, since the
Federal Guidelines are not applicable to Quebec.
[51] The plaintiffs sought to convince me that by joining
the two actions, this problem would be overcome, and that
L'Action des nouvelles conjointes would thus be entitled to
challenge the deficiencies of a federal regulation. The argument
fails to convince me, for it is clear in their pleadings that
the plaintiffs did not take into account the reality of Guidelines
issued by the Province of Quebec. Because of that fact, there
is no cause of action for the plaintiff in file T-1473-03.
[52] Further, there are several reasons why I do not believe
the plaintiffs have a reasonable cause of action:
1) Some of the issues raised have already been settled
[53] The plaintiffs raise issues that have already been settled
by the law, notably the authority of Parliament to legislate
on all matters related to divorce, a federal head of jurisdiction
under subsection 91(26) of the Constitution Act, 1867. In
fact, in Zacks v. Zacks, [1973] S.C.R. 891, the Supreme Court
did address the question:
I will deal now with the first question. Section 91(26) of
the British North America Act gives to the Parliament of Canada
authority to legislate on the matters of "Marriage and
Divorce". Section 92(13) of that Act gives to a Provincial
Legislature authority to legislate on the matters of "Property
and Civil Rights in the Province". Alimony, maintenance
and the custody of children are not specifically mentioned
in either s. 91 or s. 92. The question is as to whether these
subjects, which, in themselves, can be considered as civil
rights, may be the subject of legislation by the Parliament
of Canada, when dealing with the consequences of a divorce,
as being inseparable from its jurisdiction to pass laws governing
the change of status resulting from a dissolution of marriage.
This question has already been substantially answered in the
reasons for judgment of this Court, delivered by Ritchie J.,
in Jackson v. Jackson [1973] S.C.R. 205] when he said, at
p. 211:
... I am satisfied that the power to grant an order for the
maintenance of the children of the marriage is necessarily
ancillary to jurisdiction in divorce and that the Parliament
of Canada was therefore acting within the legislative competency
conferred upon it by the British North America Act, 1867,
s. 91(26) in legislating to this end.
While this statement deals with the matter of maintenance
under s. 11 of the Divorce Act, hereinafter referred to as
"the Act", the principle stated applies equally
to the matters of custody, care and upbringing of children
of the marriage, under s. 11(1)c), to the provisions of s.
10, dealing with interim orders, and to those of s. 12, which
authorize the ordering of payments directed under s. 10 or
s. 11, to be made to a trustee or administrator, and the imposition
of terms, conditions and restrictions in an order made under
either of those sections.
[54] The plaintiffs submit that the Divorce Act, and more
specifically provisions under section 16 and the test pertaining
to the best interest of the child, are contrary to sections
2 and 15 of the Charter. The Supreme Court of Canada, in Young
v. Young, [1993] 4 S.C.R. 3, has already concluded that subsections
16(8) (and 17(5)) of the Divorce Act do not violate subsections
2(a), (b), (d) or 15(1) of the Charter.
2) The Supreme Court has often emphasized the importance of
specific fact situations, both in the case of Charter challenges
and in the case of divorce proceedings.
[55] In a unanimous decision, MacKay v. Manitoba, [1989] 2
S.C.R. 357, the Supreme Court emphasized the importance of
fact when deciding a challenge based on the Charter:
9 Charter decisions should not and must not be made in a factual
vacuum. To attempt to do so would trivialize the Charter and
inevitably result in ill-considered opinions. The presentation
of facts is not, as stated by the respondent, a mere technicality;
rather, it is essential to a proper consideration of Charter
issues. A respondent cannot, by simply consenting to dispense
with the factual background, require or expect a court to
deal with an issue such as this in a factual void. Charter
decisions cannot be based upon the unsupported hypotheses
of enthusiastic counsel.
[56] Moreover, I do not believe that a general declaratory
relief in such a case would be a satisfactory solution to
resolve any problems which may arise because of the operation
of the Divorce Act. The Supreme Court of Canada has stated
why it is important to give the judge sitting in divorce proceedings
the discretion to decide how custody should be awarded in
Talsky v. Talsky, [1976] 2 S.C.R. 292 at 296:
... The question of custody of an infant is a matter which
peculiarly lies within the discretion of the Judge who hears
the case and has the opportunity generally denied to an Appellant
tribunal of seeing the parties and investigating the infant's
circumstances, and that his decision should not be disturbed
unless he has clearly acted on some wrong principle or disregarded
material evidence.
This passage applies to the standard of review for an appellate
court, but it is equally apt for a judge trying to determine
from the outside, for unknown applicants, whether the Guidelines
are fair or not, whether the best interest of the child is
indeed served or not.
[57] Because each situation is different, the judge must exercise
his or her discretion. The Supreme Court ruled in Young v.
Young, supra, that such discretion was in the best interest
of the child, and could not be considered contrary to the
values embodied by the Charter.
74 Custody and access decisions are pre-eminently exercises
in discretion. Case by case consideration of the unique circumstances
of each child is the hallmark of this process. This Court
recognized in Moge v. Moge, supra, in the context of spousal
support decisions, that the discretion vested in the trial
judge is essential to effect the very purposes outlined in
the Act. The wide latitude under the best interests test permits
courts to respond to the spectrum of factors which can both
positively and negatively affect a child. Such discretion
also permits the judge to focus on the needs of the particular
child before him or her, recognizing that what may constitute
stressful or damaging circumstances for one child may not
necessarily have the same effect on another.
...
157 Freedom of religion and expression are fundamental values
protected by the Charter. However, the best interests of the
child standard in the Divorce Act does not offend Charter
values, but is completely consonant with the underlying objectives
of the Charter.
3) The facts presented by the plaintiffs are of a general
nature and give a partial view of reality. Moreover, their
reasoning runs counter to the development of family law both
through legislation and case law.
[58] The evidence provided by the plaintiffs as to the biased
language and implementation of the Divorce Act is itself biased
and unsatisfactory. We are provided with figures that state
that in custody awards, sole custody is awarded to the mother
in some 80% of the cases. We are told nothing of cases that
are settled out of court - where parents do agree on joint
custody and other private arrangements, without resorting
to the courts. Knowing what happens when people fail to agree
and must have the case decided by the judge is seeing only
part of the picture.
[59] From Young v. Young, supra, paragraphs 44 and 45:
...Above all, [joint custody] requires a willingness by both
parents to work together to ensure the success of the arrangement.
Such a willingness must be sincere and genuine; by its very
nature it is not something that can be imposed by a Court
on two persons, one or both of whom may be unwilling or reluctant
to accept it in all its implications. Like marriage itself
if it is to succeed, it is an arrangement that has to be worked
out by two persons who are determined, or their own will and
in good faith, to make it work.
When parents are willing and able to share parenting responsibilities,
they usually do so by agreement, which courts generally uphold
(Kruger v. Kruger, supra; Baker v. Baker, supra; Keyes v.
Gordon (1985), 45 R.F.L. (2d) 177 (N.S.C.A.); Dussault v.
Ladouceur, supra; Droit de la famille - 316, [1986] R.D.F.
651 (Que. C.A.)). Courts are also reluctant to interfere with
shared parenting arrangements that have survived for a period
of time after parental separation or divorce (see J. D. Payne
and B. Edwards, "Co-operative Parenting After Divorce:
A Canadian Perspective" (1989), 11 Advocates' Q. 1, at
pp. 13-15; S. M. Holmes, "Imposed Joint Legal Custody:
Children's Interests or Parental Rights?" (1987), 45
U.T. Fac. L. Rev. 300).
[60] We are presented with calculations that purport to demonstrate
the alleged enrichment of women who receive child support
on behalf of their children. We are told nothing of statistics
on who is the primary caregiver in most Canadian households,
nor which gender is more likely to place a career on hold
for several years to raise children, thus losing precious
career advancement opportunities. In Moge v. Moge, [1992]
3 S.C.R. 813, Madam Justice L'Heureux-Dubé, writing
for the majority, painted a somewhat different portrait of
the economic reality of women after divorce from that presented
by the plaintiffs:
...Several years ago, L. J. Weitzman released her landmark
study on divorce, The Divorce Revolution: The Unexpected Social
and Economic Consequences for Women and Children in America
(1985), and concluded at p. 323:
For most women and children, divorce means precipitous downward
mobility -- both economically and socially. The reduction
in income brings residential moves and inferior housing, drastically
diminished or nonexistent funds for recreation and leisure,
and intense pressures due to inadequate time and money. Financial
hardships in turn cause social dislocation and a loss of familiar
networks for emotional support and social services, and intensify
the psychological stress for women and children alike. On
a societal level, divorce increases female and child poverty
and creates an ever-widening gap between the economic well-being
of divorced men, on the one hand, and their children and former
wives on the other.
(See also J. B. McLindon, "Separate But Unequal: The
Economic Disaster of Divorce for Women and Children"
(1987), 21 Fam. L.Q. 351.)
57 The picture in Canada seems to follow a similar pattern.
In the federal Department of Justice (Bureau of Review), Evaluation
of the Divorce Act - Phase II: Monitoring and Evaluation (1990),
it was found, based on client interviews that, following divorce,
59 percent of women and children surveyed fell below the poverty
line, a figure that dropped to 46 percent when support was
included in the calculation of their incomes (see pp. 92-93).
However, a more realistic picture, as it is not restricted
to the more affluent segment of the divorcing public, is probably
revealed by an analysis of court files, which determined that
in 1988, overall two-thirds of divorced women had total incomes
which placed them below the poverty line. When support was
excluded, 74 percent of divorced women fell below the poverty
line (see pp. 94-95). It is apparent that support payments,
even assuming they are paid, are making only a marginal contribution
to reducing economic hardship among women following divorce.
In contrast, a previous study released in 1986, Evaluation
of the Divorce Act - Phase I: Monitoring and Evaluation, found
that only 10 percent of men were below the poverty line after
paying support, and the average income was $13,500 above the
poverty line in such one-person households after the payment
of support. (paras. 56-57)
[61] To summarize, what the plaintiffs seem to be attempting
to do in this case is to obtain a reference to the Supreme
Court of Canada on a constitutional issue. This is open to
the government, under section 53 the Supreme Court Act, R.S.
1985, c. S-26, but neither to an individual litigant nor an
interest group. Proceeding by way of the Federal Court does
not solve the problem.
[62] I find that the parties do not have standing, that the
Federal Court of Canada is not the appropriate forum for the
issues raised and finally, that the parties have disclosed
no reasonable cause of action. For these reasons, the appeal
should be dismissed.
ORDER
THIS COURT ORDERS that:
- The appeal is dismissed in both actions, T-1473-03 and T-1474-03;
- One set of costs to the defendant, payable jointly and severally
by the plaintiffs.
"Pierre Blais"
Judge
APPENDIX
Divorce Act
Jurisdiction:
2. ...
"court", in respect of a province, means
(a) for the Province of Ontario, the Superior Court of Justice,
(a.1) for the Province of Prince Edward Island or Newfoundland,
the trial division of the Supreme Court of the Province,
(b) for the Province of Quebec, the Superior Court,
c) for the Provinces of Nova Scotia and British Columbia,
the Supreme Court of the Province,
(d) for the Province of New Brunswick, Manitoba, Saskatchewan
or Alberta, the Court of Queen's Bench for the Province, and
(e) for Yukon or the Northwest Territories, the Supreme Court,
and in Nunavut, the Nunavut Court of Justice,
and includes such other court in the province the judges of
which are appointed by the Governor General as is designated
by the Lieutenant Governor in Council of the province as a
court for the purposes of this Act; « tribunal »
Dans le cas d'une province, l'un des tribunaux suivants :
a) la Cour supérieure de justice de l'Ontario;
a.1) la section de première instance de la Cour suprême
de l'Île-du-Prince-Édouard ou de Terre-Neuve;
b) la Cour supérieure du Québec;
c) la Cour suprême de la Nouvelle-Écosse et de
la Colombie-Britannique;
d) la Cour du Banc de la Reine du Nouveau-Brunswick, du Manitoba,
de la Saskatchewan ou de l'Alberta;
e) la Cour suprême du Yukon, la Cour suprême des
Territoires du Nord-Ouest ou la Cour de justice du Nunavut.
Est compris dans cette définition tout autre tribunal
d'une province don't les juges sont nommés par le gouverneur
général et qui est désigné par
le lieutenant-gouverneur en conseil de cette province comme
tribunal pour l'application de la présente loi.
3. (1) A court in a province has jurisdiction
to hear and determine a divorce proceeding if either spouse
has been ordinarily resident in the province for at least
one year immediately preceding the commencement of the proceeding.
Jurisdiction where two proceedings commenced on different
days
(2) Where divorce proceedings between the same spouses are
pending in two courts that would otherwise have jurisdiction
under subsection (1) and were commenced on different days
and the proceeding that was commenced first is not discontinued
within thirty days after it was commenced, the court in which
a divorce proceeding was commenced first has exclusive jurisdiction
to hear and determine any divorce proceeding then pending
between the spouses and the second divorce proceeding shall
be deemed to be discontinued.
Jurisdiction where two proceedings commenced on same day
(3) Where divorce proceedings between the same spouses are
pending in two courts that would otherwise have jurisdiction
under subsection (1) and were commenced on the same day and
neither proceeding is discontinued within thirty days after
it was commenced, the Federal Court has exclusive jurisdiction
to hear and determine any divorce proceeding then pending
between the spouses and the divorce proceedings in those courts
shall be transferred to the Federal Court on the direction
of that Court. 3. (1) Dans le cas d'une action en divorce,
a compétence pour instruire l'affaire et en décider
le tribunal de la province où l'un des époux
a résidé habituellement pendant au moins l'année
précédant l'introduction de l'instance.
Instances introduites devant deux tribunaux à des dates
différentes
(2) Lorsque des actions en divorce entre les mêmes époux
sont en cours devant deux tribunaux qui auraient par ailleurs
compétence en vertu du paragraphe (1), que les instances
ont été introduites à des dates différentes
et que l'action engagée la première n'est pas
abandonnée dans les trente jours suivant la date d'introduction
de l'instance, le tribunal saisi en premier a compétence
exclusive pour instruire l'affaire et en décider, la
seconde action étant considérée comme
abandonnée.
Instances introduites devant deux tribunaux à la même
date
(3) Lorsque des actions en divorce entre les mêmes époux
sont en cours devant deux tribunaux qui auraient par ailleurs
compétence en vertu du paragraphe (1), que les instances
ont été introduites à la même date
et qu'aucune des actions n'est abandonnée dans les
trente jours suivant la date d'introduction de l'instance,
la Cour fédérale a compétence exclusive
pour instruire ces affaires et en décider, les actions
étant renvoyées à cette section sur son
ordre.
The same conditions apply in the case of corollary
relief (s. 4) and variation of orders (s. 5).
Granting custody:
16. (1) A court of competent jurisdiction may, on application
by either or both spouses or by any other person, make an
order respecting the custody of or the access to, or the custody
of and access to, any or all children of the marriage.
Interim order for custody
(2) Where an application is made under subsection (1), the
court may, on application by either or both spouses or by
any other person, make an interim order respecting the custody
of or the access to, or the custody of and access to, any
or all children of the marriage pending determination of the
application under subsection (1).(8) In making an order under
this section, the court shall take into consideration only
the best interests of the child of the marriage as determined
by reference to the condition, means, needs and other circumstances
of the child.
(10) In making an order under this section, the court shall
give effect to the principle that a child of the marriage
should have as much contact with each spouse as is consistent
with the best interests of the child and, for that purpose,
shall take into consideration the willingness of the person
for whom custody is sought to facilitate such contact. 16.
(1) Le tribunal compétent peut, sur demande des époux
ou de l'un d'eux ou de toute autre personne, rendre une ordonnance
relative soit à la garde des enfants à charge
ou de l'un d'eux, soit à l'accès auprès
de ces enfants, soit aux deux.
(2) Le tribunal peut, sur demande des époux ou de l'un
d'eux ou de toute autre personne, rendre une ordonnance provisoire
relative soit à la garde des enfants à charge
ou de l'un d'eux, soit à l'accès auprès
de ces enfants, soit aux deux, dans l'attente d'une décision
sur la demande visée au paragraphe (1).
(8) En rendant une ordonnance conformément au présent
article, le tribunal ne tient compte que de l'intérêt
de l'enfant à charge, défini en fonction de
ses ressources, de ses besoins et, d'une façon générale,
de sa situation.
(10) En rendant une ordonnance conformément au présent
article, le tribunal applique le principe selon lequel l'enfant
à charge doit avoir avec chaque époux le plus
de contact compatible avec son propre intérêt
et, à cette fin, tient compte du fait que la personne
pour qui la garde est demandée est disposée
ou non à faciliter ce contact.
Authority to adopt Guidelines
26.1 (1) The Governor in Council may establish guidelines
respecting the making of orders for child support, including,
but without limiting the generality of the foregoing, guidelines
(a) respecting the way in which the amount of an order for
child support is to be determined;
(b) respecting the circumstances in which discretion may be
exercised in the making of an order for child support;
(c) authorizing a court to require that the amount payable
under an order for child support be paid in periodic payments,
in a lump sum or in a lump sum and periodic payments;
(d) authorizing a court to require that the amount payable
under an order for child support be paid or secured, or paid
and secured, in the manner specified in the order;
(e) respecting the circumstances that give rise to the making
of a variation order in respect of a child support order;
(f) respecting the determination of income for the purposes
of the application of the guidelines;
(g) authorizing a court to impute income for the purposes
of the application of the guidelines; and
(h) respecting the production of income information and providing
for sanctions when that information is not provided.
(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. 26.1
(1) Le gouverneur en conseil peut établir des lignes
directrices à l'égard des ordonnances pour les
aliments des enfants, notamment pour :
a) régir le mode de détermination du montant
des ordonnances pour les aliments des enfants;
b) régir les cas où le tribunal peut exercer
son pouvoir discrétionnaire lorsqu'il rend des ordonnances
pour les aliments des enfants;
c) autoriser le tribunal à exiger que le montant de
l'ordonnance pour les aliments d'un enfant soit payable sous
forme de capital ou de pension, ou des deux;
d) autoriser le tribunal à exiger que le montant de
l'ordonnance pour les aliments d'un enfant soit versé
ou garanti, ou versé et garanti, selon les modalités
prévues par l'ordonnance;
e) régir les changements de situation au titre desquels
les ordonnances modificatives des ordonnances alimentaires
au profit d'un enfant peuvent être rendues;
f) régir la détermination du revenu pour l'application
des lignes directrices;
g) autoriser le tribunal à attribuer un revenu pour
l'application des lignes directrices;
h) régir la communication de renseignements sur le
revenu et prévoir les sanctions afférentes à
la non-communication de tels renseignements.
(2) Les lignes directrices doivent être fondées
sur le principe que l'obligation financière de subvenir
aux besoins des enfants à charge est commune aux époux
et qu'elle est répartie entre eux selon leurs ressources
respectives permettant de remplir cette obligation.
Canadian Bill of Rights
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex,
the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security
of the person and enjoyment of property, and the right not
to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law
and the protection of the law;...
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any
of the rights or freedoms herein recognized and declared,
... 1. Il est par les présentes reconnu et déclaré
que les droits de l'homme et les libertés fondamentales
ci-après énoncés ont existé et
continueront à exister pour tout individu au Canada
quels que soient sa race, son origine nationale, sa couleur,
sa religion ou son sexe :
a) le droit de l'individu à la vie, à la liberté,
à la sécurité de la personne ainsi qu'à
la jouissance de ses biens, et le droit de ne s'en voir privé
que par l'application régulière de la loi;
b) le droit de l'individu à l'égalité
devant la loi et à la protection de la loi;
[...]
2. Toute loi du Canada, à moins qu'une loi du Parlement
du Canada ne déclare expressément qu'elle s'appliquera
nonobstant la Déclaration canadienne des droits, doit
s'interpréter et s'appliquer de manière à
ne pas supprimer, restreindre ou enfreindre l'un quelconque
des droits ou des libertés reconnus et déclarés
aux présentes, (...)
Canadian Charter of Rights and Freedoms
2. Everyone has the following fundamental freedoms:
a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including
freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.
7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except
in accordance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit
of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity
that has as its object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged
because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
28. Notwithstanding anything in this Charter, the rights and
freedoms referred to in it are guaranteed equally to male
and female persons. 2. Chacun a les libertés fondamentales
suivantes :
a) liberté de conscience et de religion;
b) liberté de pensée, de croyance, d'opinion
et d'expression, y compris la liberté de la presse
et des autres moyens de communication;
c) liberté de réunion pacifique;
d) liberté d'association.
7. Chacun a droit à la vie, à la liberté
et à la sécurité de sa personne; il ne
peut être porté atteinte à ce droit qu'en
conformité avec les principes de justice fondamentale.
12. Chacun a droit à la protection contre tous traitements
ou peines cruels et inusités.
15. (1) La loi ne fait acception de personne et s'applique
également à tous, et tous ont droit à
la même protection et au même bénéfice
de la loi, indépendamment de toute discrimination,
notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion,
le sexe, l'âge ou les déficiences mentales ou
physiques. Programmes de promotion sociale
(2) Le paragraphe (1) n'a pas pour effet d'interdire les lois,
programmes ou activités destinés à améliorer
la situation d'individus ou de groupes défavorisés,
notamment du fait de leur race, de leur origine nationale
ou ethnique, de leur couleur, de leur religion, de leur sexe,
de leur âge ou de leurs déficiences mentales
ou physiques.
24. (1) Toute personne, victime de violation ou de négation
des droits ou libertés qui lui sont garantis par la
présente charte, peut s'adresser à un tribunal
compétent pour obtenir la réparation que le
tribunal estime convenable et juste eu égard aux circonstances.
28. Indépendamment des autres dispositions de la présente
charte, les droits et libertés qui y sont mentionnés
sont garantis également aux personnes des deux sexes.
Order Designating the Province of Quebec for the Purposes
of the Definition "applicable guidelines" in Subsection
2(1) of the Divorce Act
SOR/97-237
Registration 22 April, 1997
DIVORCE ACT
P.C. 1997-644 22 April, 1997
Whereas the Province of Quebec, pursuant to subsection 2(5)a
of the Divorce Act, has established comprehensive guidelines
for the determination of child support that deal with the
matters referred to in section 26.1 of the Divorce Act;
Therefore, His Excellency the Governor General in Council,
on the recommendation of the Minister of Justice, pursuant
to subsection 2(5)a of the Divorce Act, hereby makes the annexed
Order Designating the Province of Quebec for the Purposes
of the Definition "applicable guidelines" in Subsection
2(1) of the Divorce Act. S.C. 1997, c. 1, s. 1(4)b R.S., c.
3 (2nd Supp.)c S.C. 1997, c. 1, s. 11
DESIGNATION
1. The Province of Quebec is hereby designated for the purposes
of the definition "applicable guidelines" in subsection
2(1) of the Divorce Act.GUIDELINES
2. For the purposes of subsection 2(5) of the Divorce Act,
the following legislative texts are the laws that constitute
the comprehensive guidelines for the Province of Quebec:
(a) An Act to amend the Civil Code of Québec and the
Code of Civil Procedure as regards the determination of child
support payments, S.Q. 1996, c. 68;
(b) the Regulation respecting the determination of child support
payments, made by Order 484-97 of April 9, 1997;
(c) Title Three of Book Two of the Civil Code of Quebec, S.Q.
1991, c. 64; and
(d) Chapter VI.1 of Title IV of Book V of the Code of Civil
Procedure, R.S.Q., c. C-25.
COMING INTO FORCE
3. This Order comes into force on May 1, 1997.
Divorce Act, section 2 (1)
"applicable guidelines" means
(a) where both spouses or former spouses are ordinarily resident
in the same province at the time an application for a child
support order or a variation order in respect of a child support
order is made, or the amount of a child support order is to
be recalculated pursuant to section 25.1, and that province
has been designated by an order made under subsection (5),
the laws of the province specified in the order, and ...
(5) The Governor in Council may, by order, designate a province
for the purposes of the definition "applicable guidelines"
in subsection (1) if the laws of the province establish comprehensive
guidelines for the determination of child support that deal
with the matters referred to in section 26.1. The order shall
specify the laws of the province that constitute the guidelines
of the province. Décret désignant la province
de Québec pour l'application de la définition
de
« lignes directrices applicables » au paragraphe
2(1) de la Loi sur le divorce
DORS/97-237
Enregistrement 22 avril 1997
LOI SUR LE DIVORCE
C.P. 1997-644 22 avril 1997
Attendu que, conformément au paragraphe 2(5)a de la
Loi sur le divorce, la province de Québec a établi,
relativement aux aliments pour enfants, des lignes directrices
complètes qui traitent des questions visées
à l'article 26.1c de cette loi,
À ces causes, sur recommandation du ministre de la
Justice et en vertu du paragraphe 2(5)a de la Loi sur le divorceb,
Son Excellence le Gouverneur général en conseil
prend le Décret désignant la province de Québec
pour l'application de la définition de « lignes
directrices applicables » au paragraphe 2(1) de la Loi
sur le divorce, ci-après.
L.C. 1997, ch. 1, par. 1(4)b L.R., ch. 3 (2e suppl.)c L.C.
1997, ch. 1, art. 11
DÉSIGNATION
1. La province de Québec est désignée
pour l'application de la définition de « lignes
directrices applicables » au paragraphe 2(1) de la Loi
sur le divorce.
LIGNES DIRECTRICES
2. Aux fins du paragraphe 2(5) de la Loi sur le divorce, les
textes législatifs suivants constituent les lignes
directrices complètes de la province de Québec
:
a) la Loi modifiant le Code civil du Québec et le Code
de procédure civile relativement à la fixation
des pensions alimentaires pour enfants, L.Q. 1996, ch. 68;
b) le Règlement sur la fixation des pensions alimentaires
pour enfants, édicté par le décret 484-97
du 9 avril 1997;
c) le Titre Troisième du Livre Deuxième du Code
civil du Québec, L.Q. 1991, ch. 64;
d) le Chapitre VI.1 du Titre IV du Livre V du Code de procédure
civile, L.R.Q., ch. C-25.
ENTRÉE EN VIGUEUR
3. Le présent décret entre en vigueur le 1er
mai 1997.
Loi sur le divorce, par. 2(1)
« lignes directrices applicables » S'entend :
a) dans le cas où les époux ou les ex-époux
résident habituellement, à la date à
laquelle la demande d'ordonnance alimentaire au profit d'un
enfant ou la demande modificative de celle-ci est présentée
ou à la date à laquelle le nouveau montant de
l'ordonnance alimentaire au profit d'un enfant doit être
fixée sous le régime de l'article 25.1, dans
la même province -- qui est désignée par
un décret pris en vertu du paragraphe (5) --, des textes
législatifs de celle-ci précisés dans
le décret;
(5) Le gouverneur en conseil peut, par décret, désigner
une province pour l'application de la définition de
« lignes directrices applicables » au paragraphe
(1) si la province a établi, relativement aux aliments
pour enfants, des lignes directrices complètes qui
traitent des questions visées à l'article 26.1.
Le décret mentionne les textes législatifs qui
constituent les lignes directrices de la province.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1473-03 & T-1474-03
STYLE OF CAUSE:
L'ACTION DES NOUVELLES CONJOINTES DU QUÉBEC
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
- and -
Docket: T-1474-03
BETWEEN:
L'APRÈS-RUPTURE
FATHERS ARE CAPABLE TOO: PARENTING ASSOCIATION
LEGAL KIDS
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 27, 2004
REASONS FOR AND ORDER : BLAIS J.
DATED: JUNE 1, 2004
APPEARANCES:
Mr. Gerald D. Chipeur FOR PLAINTIFF
Mr. Ivan Bernardo
Ms. Pascale-Catherine Guay FOR DEFENDANT
Mr. André Lespérance
SOLICITORS OF RECORD:
CHIPEUR ADVOCATES FOR PLAINTIFF
DEPUTY ATTORNEY GENERAL OF CANADA FOR DEFENDANT
MORRIS ROSENBERG
http://decisions.fct-cf.gc.ca/fct/2004/2004fc797.shtml
|
