Robert T. Strickland, George Connon, Roland Auer, Iwona Auer-Grzesiak, Mark Auer and Vladimir Auer by his Litigation Representative Roland Auer v. Attorney General of Canada, 2015 SCC 37 (Federal Court  — Jurisdiction — Family law — Child support — Guidelines)

On appeal from a judgment of the Federal Court of Appeal (2014 FCA 33), affirming a decision of Gleason J. (2013 FC 475).

The appellants brought an application for judicial review in the Federal Court seeking a declaration that the Federal Child Support Guidelines are unlawful as they are not authorized by s. 26.1(2) of theDivorce Act. They claim that the Guidelines are not based on the “relative abilities to contribute” of both spouses and that they do not reasonably calculate the amounts required “to maintain the children”. The application judge held that the Federal Court is not an appropriate forum in which to address the validity of the Guidelines. Given the minor role the Federal Court plays in issues under the Divorce Act and the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and child support, it was found that it would be inappropriate for the Federal Court to consider the judicial review application on its merits. The Federal Court of Appeal upheld this conclusion.

Held (9:0): The appeal should be dismissed.

Per McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Gascon and Côté JJ.: 

The Court’s jurisprudence supports the principle that the provincial superior courts, in the context of proceedings properly before them, can address the legality of the conduct of federal boards, commissions and tribunals, where doing so is a necessary step in resolving the claims asserted in those proceedings. This means that in the context of family law proceedings otherwise properly before them, the provincial superior courts can decide that the Guidelines made by the Governor in Council areultra vires and decline to apply them if doing so is a necessary step in resolving the matters before them.

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief. Declarations of rights, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy. The discretionary nature of judicial review and declaratory relief is continued by the judicial review provisions of the Federal Courts Act. Section 18.1(3) provides that “on an application for judicial review, the Federal Court may” make certain orders in the nature of those traditional remedies. As a result, judges of the Federal Court have discretion in determining whether judicial review should be undertaken. The fact that undertaking judicial review is discretionary means that the Federal Court judge’s exercise of that discretion is entitled to deference on appeal.

One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis which should take account of the purposes and policy considerations underpinning the legislative scheme in issue.

In this case, the appellants’ position that they are entitled to a ruling on the legality of the Guidelinesthrough a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so which it has decided not to exercise. Further, the appellants’ position that the alternative is not adequate because it does not provide identical procedures or relief cannot be accepted. The appellants’ arguments focus too narrowly on how challenging the Guidelines in the context of family law litigation in the provincial superior courts will not provide everything that might be available to them on judicial review. Here, the appellants request a judicial determination of, among other things, whether theGuidelines are based, as they are required to be by s. 26.1(2) of the Divorce Act, 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. Making that determination will inevitably engage family law expertise in relation to, among other things, the nature and extent of the obligation to maintain children and how the relative abilities of parents to do so should be assessed. The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children, as well as what custody and support arrangements are in their best interests. Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters.

It would not be more efficient in this case to obtain a ruling in the Federal Court, as such a ruling would not be binding on any provincial superior court. Regardless of what the Federal Court might decide, before a ruling could have any practical effect, the issue would have to be re‑litigated in the superior courts, or, alternatively, litigated up to this Court. It would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases. Further, the appellants’ judicial review proceedings exclude direct adversarial participation by other directly affected parties: spouses and former spouses seeking child support orders or variations of them under the Divorce Act. However, adjudicating the issue in the context of Divorce Act or child support proceedings would ensure full participation of these parties.

In summary, the Federal Court did not make any reviewable error in exercising the discretion not to entertain the judicial review application for declaratory relief. Provincial superior courts have jurisdiction to address the validity of the Guidelines where doing so is a necessary step in resolving a case otherwise properly before them. Judicial review in the Federal Court is manifestly inappropriate in this case and the Federal Court reasonably exercised its discretion not to engage in it.

The parties assumed that the Federal Court has exclusive original jurisdiction to grant judicial review remedies directed against regulations promulgated by the Governor in Council and as a result, that point is not before the Court for decision. But as presently advised, the concerns expressed in the minority opinion in relation to this issue are not shared. The language of the Federal Courts Act can be taken as a clear and explicit expression of parliamentary intent. No one questions that s. 18 does not withdraw the authority of the provincial superior courts to grant the traditional administrative law remedies against federal boards, commissions and tribunals on division of powers grounds, but with respect to judicial review on administrative law grounds, it has been expressly confirmed that the Federal Court has exclusive original jurisdiction as described in s. 18 of the Federal Courts Act.

Per Abella and Wagner JJ.: 

Although there is agreement with the result reached by the majority opinion, there is concern that the reasons not be seen as representing a definitive view from this Court that the provincial superior courts cannot declare federal regulations invalid on administrative grounds. The parties did not argue the issue of whether s. 18 of the Federal Courts Act grants the Federal Court exclusive original jurisdiction to declare invalid federal regulations promulgated by the Governor in Council. As a result, this case should not be seen as categorically endorsing the assumption that the Federal Court has exclusive jurisdiction to declare invalid all such regulations. This Court has said that provincial superior courts have jurisdiction to declare invalid the federal laws they administer. Any derogation from the jurisdiction of the provincial superior courts requires clear and explicit statutory wording to this effect. Section 18 of the Federal Courts Act does not clearly and unequivocally strip the provincial superior courts of their jurisdiction to declare federal regulations made by the Governor in Council to be invalid on administrative grounds. The Federal Court was created to remove from the provincial superior courts the jurisdiction to supervise federal administrative tribunals, not to strip them of their jurisdiction to determine the vires of the federal regulations they apply. There is no evidence that Parliament intended to limit the subject matter jurisdiction of the provincial superior courts by preventing them from determining the vires of the regulations they apply. At the very least, this argues for caution and full argument before this Court declares – or is seen to declare – that s. 18 of the Federal Courts Actmeans that the Federal Court has exclusive jurisdiction over all federal regulations even if they are not part of legislative schemes over which the Federal Court has jurisdiction or expertise, such as theDivorce Act.

Reasons for judgment by Cromwell J. Separate concurring reasons by Abella and Wagner JJ.

Neutral Citation: 2015 SCC 37. Docket No. 35808.

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