Bates v. Bates

49 O.R. (3d) 1

[2000] O.J. No. 2269

Docket No. C31685

Court of Appeal for Ontario

Austin, Laskin and Borins JJ.A.

June 19, 2000

Family law -- Support -- Child support -- Federal Child Support Guidelines -- Court's discretion to order amount of child support that differs from table amount under Guidelines strictly limited -- Court may depart from table amounts only under s. 17(6.2) to s. 17(6.5) of Divorce Act or under ss. 4, 5, 7, 8, 9 or 10 of Guidelines -- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17(6.2)-(6.5) -- Federal Child Support Guidelines, SOR/97-175, ss. 4, 5, 7, 8, 9, 10.

Family law -- Support -- Child support -- Variation -- Federal Child Support Guidelines -- Wife bringing application to vary existing child support order following coming into force of Federal Child Support Guidelines -- Motions judge holding that coming into force of Guidelines constituted material change in circumstances entitling wife to variation order complying with Guidelines -- Husband's appeal allowed on basis that Ontario Court of Appeal decided in Sherman v. Sherman that spouse seeking variation must establish material change in circumstances apart from coming into force of Guidelines -- Correctness of Sherman questioned and reconsideration of its reasoning recommended -- Federal Child Support Guidelines, SOR/97-175.

After the Federal Child Support Guidelines came into effect, the respondent applied to vary her existing child support order to the table amount under the Guidelines. The motions judge held that the mere coming into force of the Guidelines was a change in circumstances entitling the respondent to a variation order in accordance with the Guidelines. The appellant appealed.

Held, the appeal should be allowed.

Per Laskin J.A. (Borins J.A. concurring): The Ontario Court of Appeal decided in Sherman v. Sherman that the coming into force of the Guidelines was not a change in circumstances entitling a party automatically to come under the new regime, but merely a triggering mechanism to permit a review of the circumstances to determine whether a variation was warranted. Fairness and the principle of stare decisis dictate that Sherman be applied in this case. But, Sherman was incorrectly decided and should be reconsidered.

The proper interpretation of the relevant provisions of the Divorce Act and the Guidelines is that the coming into force of the Guidelines amounts to a change in circumstances entitling a spouse to vary a previous child support order to comply with the Guidelines regime. A court has discretion to refuse to vary only if the requirements of s. 17(6.2) to s. 17(6.5) of the Divorce Act are met. Indicators of legislative meaning support this interpretation: (1) The wording of the relevant provisions supports the interpretation. (2) Those who argue in favour of giving the court an overriding discretion to refuse to apply the Guidelines focus on the word "may" in s. 17(1) of the Divorce Act. In some contexts, the word "may" confers a discretionary power on the court. In other contexts, "may" simply gives the court the power or authority to do something; and if the exercise of that power depends on a condition being satisfied, "may" has been interpreted to mean "must" once the condition is met. In the context of the new child support regime under s. 17 of the Divorce Act and the Guidelines, "may" in s. 17(1) of the Divorce Act is not permissive, but authorizing and empowering, in the sense that if the condition of the section is met -- if there has been a change in circumstances -- the court must vary the child support order to comply with the Guidelines. Because the mere coming into force of the Guidelines is a change in circumstances, on application, a court must vary a previous child support order to comply with the Guidelines. (3) Interpreting the Divorce Act to allow a spouse to vary a previous child support order to comply with the Guidelines regime promotes the four stated objectives of the Guidelines; the contrary interpretation achieves none of these objectives. (4) Parliament, in s. 17(6.2) to (6.5) of the Divorce Act, expressly provided when a court may maintain a previous agreement or court order instead of awarding Guidelines support. If special provisions in the agreement or order benefit the child and the Guidelines amount would be inequitable, or if the parties have otherwise made reasonable arrangements for the support of the child, the court may depart from the Guidelines. Parliament did not specify any other circumstances when a court may refuse to apply the Guidelines to previous child support orders. The principle of implied exclusion applies. One can reasonably infer that Parliament did not intend the court to have discretion to decline to apply the Guidelines unless the provisions of s. 17(6.2) to (6.5) are met. (5) Section 14(c) of the Guidelines, providing that the coming into force of the Guidelines is a change in circumstances -- is rendered meaningless if the courts retain an overriding discretion to refuse to vary a pervious child support order unless there has been a change in circumstances apart from the Guidelines. (6) The legislative history of the Guidelines shows Parliament's intention to permit spouses to br ing previous orders under the new regime.

The appellant should be denied leave to introduce fresh evidence in the form of her affidavit setting out her current income and expenses. Although she contended that the fresh evidence she filed showed a material change in circumstances, it would be unwise and unfair to so decide without giving the appellant an opportunity to reply to this evidence and test it by cross-examination. Moreover, the appellate court was ill- equipped to undertake what would amount to a new assessment of the application for a variation. That assessment should be undertaken by the trial court.

The court's discretion to order an amount of child support that differs from the table amount under the Guidelines is strictly limited and clearly specified. The court may depart from the table amounts only under s. 17(6.2) to s. 17(6.5) of the Divorce Act or under ss. 4, 5, 7, 8, 9 or 10 of the Guidelines. Section 4 of the Guidelines applied to high income payors like the appellant. If the court considers the table amount "inappropriate" under s. 4(b), it has discretion to order a different amount. Thus, if the respondent established a change in circumstances entitling her to come under the Guidelines amount, the appellant should have the opportunity to persuade the trial court that the table amount is inappropriate.

Per Austin J.A. (concurring): The application to adduce fresh evidence and the appeal should be disposed of as stated by Laskin J.A. on the basis of the decision in Sherman v. Sherman, the fact that the decision of the motions judge effected a substantial increase in child support, the decision of Francis v. Baker in the Supreme Court of Canada, which makes it clear that such changes should be made at the trial level, and the right of the appellant to have a full opportunity to test and meet any evidence presented by the respondent at a new hearing.

APPEAL from an order varying a child support order.

Sherman v. Sherman (1999), 1999 CanLII 4701 (ON CA), 44 O.R. (3d) 411, 45 R.F.L. (4th) 424 (C.A.), folld Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, 44 O.R. (3d) 736n, 177 D.L.R. (4th) 1, 246 N.R. 45, 50 R.F.L. (4th) 228, affg (1998), 1998 CanLII 4725 (ON CA), 38 O.R. (3d) 481, 157 D.L.R. (4th) 1, 34 R.F.L. (4th) 317 (C.A.); Gervais v. Tongue, 2000 CanLII 22553 (ON SC), [2000] O.J. No. 529 (S.C.J.); Osmar v. Osmar, Ont. S.C.J., Aston J., May 23, 2000 (unreported), consd Wang v. Wang (1998), 1998 CanLII 6374 (BC CA), 58 B.C.L.R. (3d) 159, 164 D.L.R. (4th) 146, [1999] 4 W.W.R. 752, 39 R.F.L. (4th) 426 (B.C.C.A.), disaprvd of Other cases referred to Bapoo v. Co-operators General Insurance Co. (1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616, 154 D.L.R. (4th) 385, [1998] I.L.R. 1-3512, 33 M.V.R. (3d) 135 (C.A.) [leave to appeal refused (1998), 227 N.R. 398n (S.C.C.)]; Delta Acceptance Corp. v. Redman, 1966 CanLII 130 (ON CA), [1966] 2 O.R. 37, 55 D.L.R. (2d) 481 (C.A.); Dergousoff v. Dergousoff (1999), 1999 CanLII 12250 (SK CA), 177 Sask. R. 64, 199 W.A.C. 64, [1999] 10 W.W.R. 633, 48 R.F.L. (4th) 1 (C.A.); Fire v. Longtin (1997), 1994 CanLII 1058 (ON CA), 17 O.R. (3d) 418, 112 D.L.R. (4th) 34, 38 R.P.R. (2d) 1 (C.A.) [affd 1995 CanLII 75 (SCC), [1995] 4 S.C.R. 3, 25 O.R. (3d) 416n, 128 D.L.R. (4th) 767, 188 N.R. 234, 48 R.P.R. (2d) 1]; Garard v. Garard (1998), 1998 CanLII 6482 (BC CA), 56 B.C.L.R. (3d) 94, 164 D.L.R. (4th) 347, [1999] 3 W.W.R. 619, 41 R.F.L. (4th) 1 (C.A.); Laird v. Laird (2000), 2000 ABCA 9, 76 Alta. L.R. (3d) 1, 182 D.L.R. (4th) 357, [2000] 4 W.W.R. 213 (C.A.); Meuser v. Meuser (1998), 1998 CanLII 4620 (BC CA), 58 B.C.L.R. (3d) 131, 168 D.L.R. (4th) 387, [1999] 4 W.W.R. 739, 43 R.F.L. (4th) 140 (C.A.), supp. reasons 1999 BCCA 166, 44 R.F.L. (4th) 262 (B.C.C.A.) (sub nom. Ingimundson v. Meuser); New Brunswick (Minister of Health and Community Services) v. L. (M.), 1998 CanLII 800 (SCC), [1998] 2 S.C.R. 534, 204 N.B.R. (2d) 1, 165 D.L.R. (4th) 58, 230 N.R. 201, 520 A.P.R. 1, 41 R.F.L. (4th) 339 (sub nom. Nouveau-Brunswick (Ministre de la Santé et des Services communautaires) v. L. (M.)); Parent v. Pelletier (1999), 1999 CanLII 32734 (NB CA), 1 R.F.L. (5th) 66, [1999] N.B.J. No. 391 (N.B.C.A.); R. v. Jenkins (1996), 1996 CanLII 2065 (ON CA), 29 O.R. (3d) 30, 107 C.C.C. (3d) 440, 48 C.R. (4th) 213 (C.A.); R. v. Pierce (1997), 1997 CanLII 3020 (ON CA), 32 O.R. (3d) 321, 114 C.C.C. (3d) 23, 5 C.R. (5th) 171 (C.A.); R. v. Santeramo (1976), 1976 CanLII 1456 (ON CA), 32 C.C.C. (2d) 35, 36 C.R.N.S. 1 (Ont. C.A.); R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, 39 O.R. (3d) 223n, 161 D.L.R. (4th) 590, 227 N.R. 326, 125 C.C.C. (3d) 385, 16 C.R. (5th) 199, affg (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577, 108 C.C.C. (3d) 1, 49 C.R. (4th) 97 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. 210-006 (sub nom. Ontario (Ministry of Labour) v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour); Tauber v. Tauber (2000), 2000 CanLII 5747 (ON CA), 48 O.R. (3d) 577 (Ont. C.A.); Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, 125 Sask. R. 81, 119 D.L.R. (4th) 405, 173 N.R. 321, 81 W.A.C. 81, 6 R.F.L. (4th) 161; Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All E.R. 293, [1944] K.B. 718, 113 L.J.K.B. 513, 171 L.T. 113, 60 T.L.R. 536, 88 Sol. Jo. 332 (C.A.) Statutes referred to Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (am. 1997, c. 1), ss. 15.1(3), 17 Family Law Act, R.S.O. 1990, c. F.3, s. 37(2.3)-(2.6) (en. 1997, c. 20, s. 6) Interpretation Act, R.S.C. 1985, c. I-21, ss. 3(1), 11 Rules and regulations referred to Federal Child Support Guidelines, SOR/97-175 (Divorce Act) (am. SOR/97-563), ss. 1, 3(1), 4, 5, 7, 8, 9, 10, 14(c) Authorities referred to Bala, "First Impressions of the Implementation of the Guidelines, March 1998", Federal Child Support Guidelines: Referance Manual (Ottawa: Department of Justice) Epstein, "Child Support Guidelines Legislation: An Overview", Federal Child Support Guidelines: Reference Manual (Ottawa: Department of Justice, 1997) Epstein, "Separation Agreements and Material Change of Circumstances Clauses", The Six Minute Family Lawyer (Toronto: Law Society of Upper Canada, 1996) Epstein, "Variation Proceedings: The Effect of the Guidelines on Previous Agreements and Orders", Child Support Guidelines: The Mysteries Unravelled (Toronto: Canadian Bar Association and Law Society of Upper Canada, 1996) Federal Child Support Guidelines: The Complete Workbook, looseleaf (Ottawa: Department of Justice, 1997), p. 8 McKay and McKay, "A Review of the Concepts and Case Law, March 1998", Federal Child Support Guidelines: Reference Manual (Ottawa: Department of Justice) McLeod, Annotation to Garard v. Garard (1998), 41 R.F.L. (4th) 1, pp. 2-3 McLeod, Annotation to Sherman v. Sherman (1999), 45 R.F.L. (4th) 424, pp. 425, 427 Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994), pp. 131, 168

A. Burke Doran, Q.C., for appellant. Nicole J. Tellier, for respondent.

LASKIN J.A. (BORINS J.A. concurring): --

Introduction

[1] After the new Federal Child Support Guidelines, SOR/ 97-175, as amended by SOR/97-563 ("the Guidelines") came into effect, the respondent Elizabeth Bates applied to vary her existing child support order to the table amount under the Guidelines. O'Connell J. granted the order. The appellant Paul Bates, the respondent's former husband, appeals.

[2] His appeal raises two important issues about the applicability of the Guidelines to previous child support orders. The main issue is whether the coming into force of the Guidelines entitles either spouse to vary a previous child support order to come under the Guidelines regime or whether the court has discretion to refuse to apply the Guidelines unless the spouse seeking a variation establishes a material change in circumstances. The motions judge held that the mere coming into force of the Guidelines is a change in circumstances entitling Ms. Bates to a variation order complying with the Guidelines. Although I agree with the motions judge, this court subsequently decided otherwise in Sherman v. Sherman (1999), 1999 CanLII 4701 (ON CA), 44 O.R. (3d) 411, 45 R.F.L. (4th) 424. For reasons I will discuss, I believe that Sherman was incorrectly decided and recommend that its reasoning be reconsidered. However, the correctness of Sherman was not raised before us. For this reason and because of institutional considerations, I would apply Sherman to this case.

[3] The second issue is when does the court have discretion to order an amount of child support that differs from the table amount under the Guidelines. In my view, such discretion is strictly limited and clearly specified. The court may depart from the table amounts only under s. 17(6.2) to s. 17(6.5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended S.C. 1997, c. 1, [See Note 1 at end of document] or under ss. 4, 5, 7, 8, 9 or 10 of the Guidelines. Section 4 of the Guidelines applies to high income payors like Mr. Bates. If the court considers the table amount "inappropriate" under s. 4(b) it has discretion to order a different amount. Because of Sherman and because the jurisprudence on the court's discretion under s. 4(b) of the Guidelines changed between the hearing of the application and the hearing of the appeal, I think the fair result is to order a new hearing. At the new hearing, Ms. Bates will have the opportunity to establish a material change in circumstances and if she does, Mr. Bates will have the opportunity to persuade the court that the table amount under the Guidelines is inappropriate.

Background Facts

[4] Mr. and Ms. Bates are both lawyers working in downtown Toronto law firms. They were married in 1982, separated in the fall of 1990, and divorced in 1993. They have two daughters, Sarah, age 15, and Elizabeth, who turned 11 shortly after the appeal was argued.

[5] In September 1993, O'Connell J. issued a consent judgment in accordance with minutes of settlement that resolved custody, access and the contentious financial issues. Ms. Bates was awarded custody of the two children. Mr. Bates was ordered to pay child support of $2,600 per child per month. That amount was to be adjusted by the lesser of the increase in the Consumer Price Index and the percentage increase in Mr. Bates' income. When the order was made in 1993 Mr. Bates' gross income was $233,750. When the order under appeal was made in October 1998, his 1997 income tax return showed an income of $543,596, and the child support order had increased from $2,600 to $2,830.40 per child per month. That amount was taxable in Ms. Bates' hands and tax deductible by Mr. Bates.

[6] The order under appeal was triggered by Ms. Bates' application to vary the existing child support order to accord with the table amount under the Guidelines. O'Connell J. made the order, based on Mr. Bates' 1997 income, in the amount of $2,927.20 per child per month. Under the Guidelines and the corresponding tax regime, that amount is not taxable in Ms. Bates' hands and is not tax deductible by Mr. Bates.

[7] On the variation application before O'Connell J., Ms. Bates made no financial disclosure, refusing even to provide a copy of her income tax return. She should not be criticized for refusing to disclose her income and expenses. She did not ask for special or extraordinary expenses under s. 7 of the Guidelines. And, at the time of her application, the understanding of the family bar in Ontario, and indeed of trial judges, was that the mere coming into force of the Guidelines was a change in circumstances entitling either party to vary a previous child support order to come under the new regime.

[8] Mr. Bates, on the other hand, did file an affidavit giving details of his own financial situation and some information concerning Ms. Bates' income and the children's expenses. He resisted the application to vary or at least sought an order lower than the table amount under the Guidelines. At the time, however, high income paying spouses seeking an order for child support less than the table amount faced the impediment of this court's decision in Francis v. Baker (1998), 1998 CanLII 4725 (ON CA), 38 O.R. (3d) 481, 34 R.F.L. (4th) 317, which held that under s. 4(b) of the Guidelines a court could only vary the table amount upwards.

[9] By the time the appeal was argued before us two changes in the law had occurred. First, a panel of this court in Sherman, in an endorsement, held that the coming into force of the Guidelines was not a change in circumstances entitling a party automatically to come under the new regime, but merely a "triggering mechanism" to permit a review of the circumstances to determine whether a variation was warranted under the test in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, 119 D.L.R. (4th) 405. Second, the Supreme Court of Canada in Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, 50 R.F.L. (4th) 228 overturned this court's interpretation of the word "inappropriate" under s. 4(b) of the Guidelines and held that it meant a court could vary the table amount upwards or downwards.

[10] Against these changes in the law, Mr. Bates submitted that his appeal be allowed and Ms. Bates' application for a variation be dismissed because Ms. Bates had put forward no evidence to establish a change in circumstances. In response, Ms. Bates sought leave before us to introduce, as fresh evidence, her affidavit setting out her current income and expenses. We considered the fresh evidence and Ms. Tellier, counsel for Ms. Bates, urged us to accept it, untested by cross-examination, and dismiss the appeal. Mr. Doran, on behalf of Mr. Bates, reasonably submitted that the court could not dismiss the appeal before at least giving him the opportunity to cross-examine Ms. Bates on her affidavit, and, if appropriate, file reply affidavit material.

[11] With this background I turn to what I consider are the two issues on the appeal: first, has Ms. Bates established a change in circumstances entitling her to an order under the Guidelines; and second, is Mr. Bates, nonetheless, entitled to a new hearing on whether the table amount under the Guidelines is inappropriate?

Discussion

First Issue -- Has Ms. Bates established a change in circumstances entitling her to vary the existing child support order to come under the Guidelines?

[12] Sherman holds that the court has broad discretion to refuse to vary a previous child support order to come under the Guidelines unless the spouse seeking the variation establishes a material change in circumstances. Although Ms. Bates contended that the fresh evidence she filed and we reviewed on appeal showed a material change in circumstances, I think it would be unwise and unfair to so decide without giving Mr. Bates an opportunity to reply to this evidence and test it by cross-examination. Moreover, this court is ill-equipped to undertake what would amount to a new assessment of the application for a variation. That assessment should be undertaken by the trial court: see Francis v. Baker; and Tauber v. Tauber, a judgment of this court released June 12, 2000 [now reported 2000 CanLII 5747 (ON CA), 48 O.R. (3d) 577]. The appropriate order, in my view, is to remit Ms. Bates' application for a variation to the trial court for a new hearing on a proper evidentiary record. Consistent with that order I would dismiss Ms. Bates' motion to file fresh evidence on the appeal.

[13] Although that order would dispose of this appeal, I wish to explain why I believe that Sherman was incorrectly decided and therefore its reasoning should be reconsidered. The underlying debate raised by Sherman is whether the mere coming into force of the Guidelines amounts to a change in circumstances entitling a spouse to vary a previous child support order to comply with the Guidelines, or whether the court retains an overriding discretion not to vary a previous child support order unless the spouse has shown a change in circumstances warranting a variation. Provincial appellate courts have divided on this issue. The British Columbia Court of Appeal, in a series of cases beginning with Wang v. Wang (1998), 1998 CanLII 6374 (BC CA), 39 R.F.L. (4th) 426, 58 B.C.L.R. (3d) 159, has held that the courts maintain a discretion not to vary despite the coming into force of the Guidelines. [See Note 2 at end of document] The panel in Sherman came to the same view, as did the Alberta Court of Appeal in Laird v. Laird (2000), 2000 ABCA 9, 76 Alta. L.R. (3d) 1, 182 D.L.R. (4th) 357. But the Saskatchewan Court of Appeal reached the opposite conclusion in Dergousoff v. Dergousoff (1999), 1999 CanLII 12250 (SK CA), 48 R.F.L. (4th) 1, [1999] 10 W.W.R. 633, rejecting the reasoning in Wang and holding that the court has no discretion, but must vary the previous order to comply with the Guidelines. The New Brunswick Court of Appeal in Parent v. Pelletier (1999), 1999 CanLII 32734 (NB CA), 1 R.F.L. (5th) 66, [1999] N.B.J. No. 391 partly rejected the reasoning in Wang and Sherman, holding that, though the court had a narrow discretion not to apply the Guidelines, it could do so only where varying the existing order would cause significant harm to the child.

[14] This debate turns on the proper interpretation of the relevant statutory and Guidelines provisions. Those provisions are s. 17(1), s. 17(4), s. 17(6.1), s. 17(6.2), s. 17(6.3), s. 17(6.4) and s. 17(6.5) of the Divorce Act and ss. 1, 3(1), 4 and 14(c) of the Guidelines.

[15] Section 17(1)(a) of the Act authorizes a court to make an order varying a support order:

17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses;

[16] Section 17(4) states that before varying an order for child support the court must be satisfied that a change in circumstances as provided for in the Guidelines has occurred since the last order:

17(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change in circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

[17] Under s. 17(6.1) a court varying a child support order must do so in accordance with the Guidelines:

17(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

[18] Section 17(6.2) to (6.5) addresses when a court, in varying a child support order, may award an amount different from the Guidelines amount:

17(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

[19] Turning to the Guidelines, s. 1 sets out their four objectives:

1. The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[20] Section 3(1) of the Guidelines provides a presumptive rule for awarding the table amount:

3(1) Unless otherwise provided under these 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, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

[21] Section 4 permits the court to order an amount different from the table amount if the paying spouse has an annual income of over $150,000, as Mr. Bates does, and the court considers the table amount to be inappropriate:

4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, 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; and

(iii) the amount, if any, determined under section 7.

[22] Section 14(c) provides that for the purpose of varying a child support order made before May 1, 1997 under s. 17(4) of the Divorce Act, the coming into force of the Guidelines constitutes a change of circumstances:

14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances:

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada (1997). [See Note 3 at end of document]

[23] As with any question of statutory interpretation the court should determine the meaning of these provisions in their total context. As Iacobucci J. wrote in Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at p. 41, 154 D.L.R. (4th) 193 at p. 204:

. . . Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:

Today there is only one principle or approach, namely, the words of an Act are to 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.

The court should consider all relevant and admissible indicators of legislative meaning. The court's interpretation should comply with the legislative text, promote the legislative purpose, and produce a reasonable and just meaning: see Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan (Toronto: Butterworths, 1994), at p. 131 and Bapoo v. Co-operators General Insurance Co. (1997), 1997 CanLII 6320 (ON CA), 36 O.R. (3d) 616 at pp. 620-21, 154 D.L.R. (4th) 385 (C.A.).

[24] Applying these principles, in my view, the proper interpretation of the provisions in question is that the coming into force of the Guidelines amounts to a change in circumstances entitling a spouse to vary a previous child support order to comply with the Guidelines regime. A court has discretion to refuse to so vary only if the requirements of s. 17(6.2) to s. 17(6.5) of the Divorce Act are met. All the indicators of legislative meaning support this interpretation. I rely on the following six indicators:

(1) The wording of the relevant provisions supports this interpretation. Under s. 17(1) of the Divorce Act a court may vary a child support order. Under s. 17(4), to order a variation a court must be satisfied that the change in circumstances as provided in the Guidelines has occurred since the last order. Under s. 14(c) of the Guidelines the coming into force of the Guidelines constitutes a change in circumstances. Under s. 17(6.1) of the Divorce Act the court making a variation order for child support shall do so in accordance with the Guidelines. The combination of these provisions means that a spouse can apply to vary a previous child support order to make it comply with the Guidelines based on nothing more than the coming into force of the Guidelines.

(2) Those who argue in favour of giving the court an overriding discretion to refuse to apply the Guidelines focus on the word "may" in s. 17(1) of the Act: "[a] court . . . may make an order varying . . . a support order . . .". But the word "may" has to be read in its context. Thus, the Interpretation Act, R.S.C. 1985, c. I-21 states that "may" is to be construed as permissive unless the contrary intention appears in the legislation. [See Note 4 at end of document] In some contexts the word "may" confers a discretionary power on the court. In other contexts "may" simply gives the court the power or authority to do something; and if the exercise of that power depends on a condition being satisfied, "may" has been interpreted to mean "must" once the condition is met. An example is the recent decision of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. L. (M.), 1998 CanLII 800 (SCC), [1998] 2 S.C.R. 534 at p. 550, 41 R.F.L. (4th) 339 in which the court concluded that in the context of child protection legislation "may" means "must" where that is in the best interests of the child.

In the context of the new child support regime under s. 17 of the Divorce Act and the Guidelines it seems to me "may" in s. 17(1) is not permissive but authorizing or empowering, in the sense that if the condition of the section is met -- if there has been a change in circumstances -- the court must vary the child support order to comply with the Guidelines. Because the mere coming into force of the Guidelines is a change in circumstances, on application, a court must vary a previous child support order to comply with the Guidelines. Apart from s. 17(6.2) to s. 17(6.5) of the Divorce Act it has no discretion to refuse to do so.

In Dergousoff, supra, Cameron J.A. adopted this interpretation of "may" in s. 17(1) of the Act, and I agree with his analysis. At pp. 16-18, he stated:

Subsections 15.1(1) and 17(1) are empowering sections. In providing, as they do, that a court "may make an order," either requiring a spouse to pay child support, as in the case of subsection 15.1(1), or varying a child support order, as in the case of subsection 17(1), they empower a court to do that which it could not otherwise do. In the case of subsection 17(1), judges of the court are empowered to order the variation or operation of an order made previously by another judge of coordinate jurisdiction, something that simply could not be done in the absence of the subsection.

The essential thrust of this construction of these subsections was well made by Thorson J.A. in Falconbridge Nickel Mines Ltd. v. Ontario (Minister of Revenue) (1981), 1981 CanLII 1641 (ON CA), 121 D.L.R. (3d) 403 (Ont. C.A.) at p. 408:

In some contexts, of course, the word "may" is neither necessarily permissive nor necessarily imperative, but rather merely empowering. Its function is to empower some person or authority to do something which, otherwise, that person or authority would be without any power to do. In such a case, the word "may" merely removes an impediment to the doing of that thing. . . .

Unlike section 15.1, section 17 contains a pre-condition to the exercise of the power to make an order thereunder. Subsection 17(4) prescribes an event upon which the ability of the court to exercise the power of variation is made to depend, namely a change in circumstances as provided for in the Guidelines since the making of the previous order. Until such change is established, but not before, a judge of the court is unable to exercise this power. Hence, the fulfilment of this pre-condition is enabling, and in that sense the satisfaction of the requirements of subsection 17(4) opens the door to the making of an order varying the terms of a previously made order.

Lest it be thought the term "may" appearing in each of subsections 15.1(1) and 17(1) leaves the exercise of these powers to the discretion of the court, it should be noted that in itself the word "may," employed in contexts such as this, is customarily taken to confer neither discretionary nor non-discretionary power. As Thorson J.A. observed in Falconbridge Nickel Mines Ltd. v. Ontario (Minister of Revenue):

In such a case, the word "may" merely removes an impediment to the doing of that thing, leaving it open to be determined, in the context of the legislation in question, whether or not the Legislature intended that, where the conditions if any prescribed for the exercise of the power are met, the power will in fact be exercised. . . .

Viewed in this light, each of subsections 15.1(1) and 17(1) may be seen not only to empower the court to act but also to impose a duty upon it to do so once the conditions of fact and law requisite to the exercise of that power are met. The duty may be seen to arise from the nature, object, and conditions of the powers conferred by these subsections, together with the makeup of the class of persons for whose benefit they were conferred. The powers to make and vary child support orders were granted to further the object of ensuring that, upon divorce, the financial obligation of the spouses to maintain the children of the marriage is fulfilled in accordance with the law. The law lays down the measure of the obligation, found in the Guidelines, and directs the court, when exercising these powers, to do so "in accordance with the applicable guidelines." And since the obligation is not a static one, its measure is to be taken from time to time as circumstances bearing upon the obligation change.

Having regard for this, it is surely not within the discretion of the court to refuse to exercise the power to make a child support order under subsection 15.1(1) once the conditions necessary to the exercise of this power are satisfied. Nor can it be within the discretion of the court to decline to exercise the power to vary a child support under subsection 17(1) when the conditions requisite to the exercise of this power are met.

This interpretation of the word "may" best reflects the purpose of the Guidelines. Their purpose is to promote uniformity, fairness, objectivity and efficiency in child support orders by curtailing, not expanding, judicial discretion. The Guidelines themselves set out the limited circumstances when judicial discretion is to be exercised. In these limited circumstances judges in their discretion may deviate from the table amounts. The exercise of this discretion permits judges to accommodate individual family circumstances and thus avoid any unfairness arising from the general uniformity of the Guidelines regime. But for the limited discretion under the Guidelines and the limited discretion in s. 17(6.2) to s. 17(6.5) of the Divorce Act, courts must award the table amounts under the Guidelines.

(3) Interpreting the Divorce Act to allow a spouse to vary a previous child support order to comply with the Guidelines regime promotes the four stated objectives of the Guidelines; the contrary interpretation achieves none of these objectives. For convenience I repeat the four objectives in s. 1 of the Guidelines:

1. The objectives of these Guidelines are:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Assuming the Guidelines reflect what Parliament considers "fair" support, adopting an interpretation of s. 17 of the Divorce Act that gives judges an open-ended discretion to refuse to apply the Guidelines does not promote fair support. Expanding the scope of judicial discretion to permit judges to refuse to apply the only objective standard of child support available, the Guidelines, will increase, not reduce, conflict and tension between spouses. Permitting judges to ignore the Guidelines will make the resolution of family disputes less efficient, not more efficient. And giving judges broad discretion to refuse to vary previous child support orders to comply with the Guidelines regime will not ensure that spouses and children in similar circumstances are treated consistently, because their treatment will differ depending on the wholly arbitrary factor of when separation or divorce took place.

Indeed, interpreting the Divorce Act to give judges this broad discretion runs counter to the views expressed by Abella J.A. in Francis v. Baker, supra, at p. 491. In that case, Abella J.A. emphasized that the main purpose of the new Guidelines regime was to minimize judicial discretion, which, in her view, too often had resulted in arbitrary and inadequate child support awards. The Guidelines were intended "to replace the haphazard with the predictable," and, thus, through the application of an objective standard, "to help parents resolve child support issues as expeditiously as possible." Although the Supreme Court of Canada disagreed with Abella J.A.'s interpretation of the word "inappropriate" in s. 4(b) of the Guidelines, it did not suggest that her views on the purpose of the Guidelines were in error.

(4) Parliament, in s. 17(6.2) to s. 17(6.5) of the Divorce Act, expressly provided when a court may maintain a previous agreement or court order instead of awarding Guidelines support. If special provisions in the agreement or order benefit the child and the Guidelines amount would be inequitable, or if the parties have otherwise made reasonable arrangements for the support of the child, the court may depart from the Guidelines. Parliament did not stipulate any other circumstances when a court may refuse to apply the Guidelines to previous child support orders. The principle of implied exclusion applies here: expressio unius est exclusio alterius, to express one thing is to exclude another. One can reasonably infer that Parliament did not intend the court to have discretion to decline to apply the Guidelines unless the provisions of s. 17(6.2) to (6.5) are met: see Driedger on the Construction of Statutes, 3rd ed., supra, at p. 168.

(5) Section 14(c) of the Guidelines -- providing that the coming into force of the Guidelines is a change in circumstances -- is rendered meaningless if the courts retain an overriding discretion to refuse to vary a previous child support order unless there has been a change in circumstances apart from the Guidelines. Yet s. 14(c) reflects Parliament's obvious intent to treat all children fairly and equitably by permitting them and their parents to come under the Guidelines regime regardless of when their family's break-up occurred. As James G. McLeod, a professor of family law, wrote in an annotation to Sherman at (1999), 1999 CanLII 4701 (ON CA), 45 R.F.L. (4th) 424 at p. 427:

. . . Parliament changed the way judges should decide child support. The Guidelines were intended to reduce judicial discretion, not just change its form. The issue in the case should be whether the Guidelines dictate a different amount of support based on the father's income under the Guidelines, not whether there is any reason to change support aside from the Guidelines . . . Why include s. 14(c) if a court won't do anything unless there has been a material change in circumstances excluding the Guidelines?

Indeed, giving courts discretion, apart from s. 17(6.2) to s. 17(6.5) of the Divorce Act, to refuse to apply the Guidelines to previous orders on a variation application would penalize children whose parents separated or divorced before the Guidelines were introduced.

(6) The legislative history of the Guidelines also shows Parliament's intention to permit spouses to bring previous orders under the new regime. The government was acutely aware of the issues surrounding the question whether it should permit previous child support orders to be varied to comply with the new regime. These issues were discussed in the reports of the Federal Provincial Territorial Family Law Committee, which made recommendations for the new Guidelines. Moreover, the government's intention to remove the court's broad discretion in making child support orders is reflected in the statement of the parliamentary secretary to the Minister of Justice and Attorney General of Canada, during the debate over amendments to the legislation made by the Senate after the legislation had received third reading in the House of Commons. The parliamentary secretary said:

. . . Bill C-41 through the introduction of child support guidelines reaffirms the objective that both parents have a joint financial obligation to support their children. However, the minister understood the concerns raised by some members of the committee that this objective was no longer apparent since it was removed from the Act along with other provisions which were part of the concept of broad discretion which is currently used in the determination of child support. This broad discretion concept defeated the objectives of the guidelines and as such we needed to remove it from the Act. [See Note 5 at end of document]

Giving judges a broad discretion to refuse to vary existing child support orders to comply with the new regime is inconsistent with the parliamentary secretary's statement.

Also, the workbook distributed by the Department of Justice to help parents understand the new regime and calculate their child support payments states that either parent has a "right" to vary an existing order:

The new law on child support says that anyone who has a child support order or written agreement made before May 1, 1997 has the right to change it to reflect the Guidelines and the new tax rules . . . even if nothing else has changed. Either parent can ask a judge to change the child support order or written agreement to reflect the amounts in the Guidelines. [See Note 6 at end of document]

Finally, Parliament made its intent even clearer in an amendment to s. 14 of the Guidelines in December 1997 (SOR/ 97-563), replacing the introductory words "for the purposes of subsection 17(4) of the Act a change of circumstances is . . ." with "for the purposes of subsection 17(4) of the Act any one of the following constitutes a change in circumstances . . ." This amendment reflects Parliament's intent that s. 14(c) alone -- the mere coming into force of the Guidelines -- is a change in circumstances entitling a spouse to vary an existing child support order to comply with the new regime. [See Note 7 at end of document]

[25] Respectfully, these indicators of legislative meaning were not adequately considered in Wang and Sherman. Moreover, in addition to these indicators of legislative meaning, I find support for my interpretation in the views of several family law experts. For example, Philip Epstein, a highly respected and leading family law practitioner in Ontario, wrote in a paper for the Law Society of Upper Canada:

The effect of these legislative changes in the Act and the Guidelines make it clear that the passage of the Guidelines legislation and the Income Tax legislation will be deemed to be a material change of circumstance, entitling any party to move to have the child support order amended to reflect the new regime. Accordingly, for those that wish to apply to have the support for children either increased or decreased, there will be no necessity to meet the variation threshold test set down by the Supreme Court of Canada in Willick [(1994), 6 R.F.L. (4th)] and B.(G.) v. G.(L.) [1994 CanLII 24 (SCC), [1995] 3 S.C.R. 367]. These cases made it clear that there was a threshold required to justify a variation application and that threshold required that the change in circumstances not have been subjectively foreseeable by the applicant [see "Separation Agreements and Material Change of Circumstances Clauses" by Phillip Epstein in The Six Minute Family Lawyer (Toronto: Law Society of Upper Canada, April 19, 1996)].

The legislative amendments make that test unnecessary since an application is based upon an agreement or order made before the Guidelines is available to either party simply as a result of passage of the Guidelines legislation. [See Note 8 at end of document]

[26] Heather L. McKay expressed the same opinion in an article commissioned by the Child Support Team, Department of Justice Canada. She said:

For pre-May 1, 1997, orders, Section 14 of the Regulations stipulates that, on an application to vary under Section 17(4) of the Divorce Act, the coming into force of the Guidelines is deemed to be a change in circumstances. It seems clear that Parliament intended that any person who brings an application will, as of right, come under the new regime. In Williams v. Williams (unreported), August 14, 1997, N.W.T. S.C., the court stated "The enactment of the Guidelines itself provides the basis for a variation of a previously-made support order. There is no need for either party to satisfy a threshold test of a change in circumstance."

In other cases it was suggested that the wording of Section 14(b) and (c) was conjunctive and that a substantial change in circumstance was required in addition to the coming into force of the Guidelines to establish grounds for variation. (Wang v. Wang (unreported), July 11, 1997, B.C. S.C.). That was not the intention of Parliament and the section has been amended. [See Note 9 at end of document]

[27] Nicholas Bala, a professor of family law at Queen's University also took the same view in an article commissioned by the Department of Justice, writing:

The Guidelines, Section 14(c), specify that the recipient of child support under an order made prior to the new regime coming into effect has the right to vary that order and come under the new tax regime and the Guidelines. [See Note 10 at end of document]

And, Professor McLeod has also commented that, taken together, s. 17(1), s. 17(4) and s. 17(6) of the Divorce Act and s. 14 of the Guidelines "seem to provide that a person can apply to vary a pre-Guidelines order to make it comply with the Guidelines based on nothing more than the coming into force of the Guidelines." [See Note 11 at end of document] Indeed, in his view, by giving judges "a broad unstructured discretion" to determine child support, Wang and Sherman, "undermine the integrity of the Guidelines and force parties back into an adversary mode." [See Note 12 at end of document]

[28] Finally, two Ontario trial judges, both experienced in family law, have recently expressed their disagreement with the reasoning in Wang and Sherman. In Gervais v. Tongue, 2000 CanLII 22553 (ON SC), [2000] O.J. No. 529 (S.C.J.), Aitken J. expressly preferred the reasoning of Cameron J.A. in Dergousoff, although she was bound to follow Sherman. In Osmar v. Osmar, [See Note 13 at end of document] a Family Law Act case, Aston J. commented, as had Aitken J., that in both Wang and Sherman, a payor sought to invoke the Guidelines to reduce the level of child support even though his financial circumstances had improved or remained the same and those of the recipient spouse and children had not improved. On their facts, Aston J. thought it "possible to accept the outcome" in both Wang and Sherman, but "dangerous to interpret them as an invitation to wide open discretion to achieve a 'fair' result or to simply maximize the benefit to the custodial parent." In his view, to which I subscribe:

Judicial Interpretation of the Child Support Guidelines cannot depend upon what the court regards as appropriate policy, or what is "fair". Parliament chose to severely circumscribe judicial discretion in determining child support, based upon goals of consistency, certainty and overall increase in child support awards generally. No one can deny that child support is generally higher under the Guidelines, while recognizing that, in some individual cases, the Guideline amount may be lower, either for the payor or the recipient or both.

Thus, unless s. 37(2.3) or s. 37(2.5) of the Family Law Act -- the companion provision of s. 17(6.2) and s. 17(6.4) of the Divorce Act -- applied, Aston J. concluded "there is no discretion not to make an order in accordance with the Guidelines."

[29] I therefore believe that the coming into force of the Guidelines is a change in circumstances under s. 14(c) entitling a spouse to vary an existing child support order to come under the Guidelines, and that Sherman -- which held otherwise -- was incorrectly decided. Sherman was incorrectly decided because it reintroduces a broad discretion into the variation of existing child support orders when one of the main purposes of the new Guidelines regime is to introduce uniformity and thus curtail judicial discretion. I observe, however, in fairness to the panel in Sherman, that in that case the respondent conceded the court had an overriding discretion not to vary a previous order to comply with the Guidelines. Moreover, the panel did not have the benefit of full argument or of all the relevant authorities on the issue. The British Columbia Court of Appeal decision in Wang was not cited during oral argument but was brought to the panel's attention the da y that it released its original endorsement (which was subsequently amended), and the Saskatchewan Court of Appeal decision in Dergousoff, which supports the contrary interpretation, and was decided before Sherman was argued, was not given to the panel at all. Nor did the panel have the benefit of any of the commentaries on the issue by family law experts.

[30] Although I recommend that Sherman be reconsidered, fairness and institutional considerations dictate that it be applied in this case. I deal first with fairness. This appeal was argued on the footing that the principles in Sherman applied to Ms. Bates' application to vary the amount of child support and therefore she had to show a material change in circumstance to obtain a variation. The argument focused on whether the court should receive her fresh evidence and, if so, whether it could decide on that evidence alone whether a material change in circumstances had been made out. Counsel did not raise the correctness of Sherman either in their factums or in oral argument. I therefore think it would be unfair to the parties to decide the case on a different footing. Moreover, as Ms. Bates' application for a variation must at least be re- heard on the question whether the table amount under the Guidelines is inappropriate, no injustice would be caused by having the entire appli cation re-heard.

[31] The institutional reasons for applying Sherman are rooted in the policy of this court on stare decisis. This court does not lightly depart from its previous decisions, even those given by endorsement. [See Note 14 at end of document]

[32] When good reason exists to doubt the correctness of an earlier decision, the usual practice is for the Chief Justice to convene a five-judge panel of the court to reconsider the earlier decision. [See Note 15 at end of document]

[33] These fairness and institutional considerations make reconsideration of Sherman in a subsequent case the more desirable path. I would, therefore, give effect to Mr. Bates' first ground of appeal, in part, by setting aside the order of the motions judge. But I would order a new hearing on whether Ms. Bates is entitled to an order varying the amount of child support to come under the Guidelines: see Tauber v. Tauber.

Second Issue -- Is Mr. Bates entitled to a new hearing on whether the table amount under the Guidelines is inappropriate?

[34] Mr. Bates' main submission was that his appeal be allowed and that Ms. Bates' application for a variation in child support be dismissed. Alternatively, he submitted that if Ms. Bates was entitled to an order varying the amount of child support to come under the Guidelines, he should be entitled to show that the table amount is too high. Mr. Bates does not rely on s. 17(6.2) to s. 17(6.5) of the Divorce Act to justify departing from the Guidelines amount. He does, however, submit that he should pay less child support than the table amount because the table amount is "inappropriate" under s. 4(b) of the Guidelines. He contends that at the very least he is entitled to a new hearing on this question, and I agree with him.

[35] The motions judge did not have the benefit of the Supreme Court of Canada's decision in Francis v. Baker. At the time he heard the application he was bound by this court's decision in Francis v. Baker, which prevented him from reducing the amount of child support prescribed by the table. The Supreme Court of Canada has given trial judges a discretion under s. 4(b) of the Guidelines to lower the amount of child support if the table amount is inappropriate. Thus, if Ms. Bates establishes a change in circumstances entitling her to come under the Guidelines regime, Mr. Bates should have the opportunity to persuade the trial court that the table amount is inappropriate.

Conclusion

[36] I would dismiss the motion to introduce fresh evidence. I would allow the appeal, set aside the order of O'Connell J. and remit Ms. Bates' application for a new hearing. I would not make any order for costs.

[37] AUSTIN J.A. (concurring): -- I agree with Laskin and Borins JJ.A. that the motion by Ms. Bates for the admission of fresh evidence should be dismissed and the appeal of Mr. Bates from the decision of O'Connell J. of February 11, 1999, should be allowed, both without costs.

[38] My reasons for these dispositions are the decision of this court in Sherman, supra, the fact that the decision of O'Connell J. effected a substantial increase in child support, the decision of Francis v. Baker, supra, in the Supreme Court of Canada which makes it clear that such changes should be made at the trial level and the right of Mr. Bates to have a full opportunity to test and meet any evidence presented by Ms. Bates at a new hearing.

Appeal allowed.

Notes

Note 1: The companion provision of the Family Law Act, R.S.O. 1990, c. F.3, as amended, is s. 37(2.3) to (2.6).

Note 2: See Garard v. Garard (1999), 1998 CanLII 6482 (BC CA), 41 R.F.L. (4th) 1, 56 B.C.L.R. (3d) 94 (C.A.); Meuser v. Meuser (1999), 1998 CanLII 4620 (BC CA), 43 R.F.L. (4th) 140, 58 B.C.L.R. (3d) 131 (C.A.).

Note 3: The Guidelines came into effect on May 1, 1997. Section 15.1(3) of the Divorce Act provides that a court making a child support shall do so in accordance with the applicable guidelines.

Note 4: By the combination of ss. 3(1) and 11.

Note 5: House of Commons Debates (February 14, 1997) at p. 8122.

Note 6: Federal Child Support Guidelines: The Complete Workbook, looseleaf (Ottawa: Department of Justice, 1997) at p. 8.

Note 7: See the Regulatory Impact Analysis Statement accompanying the amendments at Canada Gazette 1997 II. 3598.

Note 8: Philip M. Epstein, Q.C., "Variation Proceedings: The Effect of the Guidelines on Previous Agreements and Orders", Child Support Guidelines: The Mysteries Unravelled (Toronto: Canadian Bar Association and Law Society of Upper Canada, 1996). See also his 1997 article "Child Support Guidelines Legislation: An Overview", Federal Child Support Guidelines: Reference Manual, supra, where he refers to the Willick test as having been "legislatively overridden by the Guidelines."

Note 9: Heather L. McKay, Shennette Leuschner McKay, "A Review of the Concepts and Case Law, March 1998", Federal Child Support Guidelines: Reference Manual, supra.

Note 10: Nicholas Bala, "First Impressions of the Implementation of the Guidelines, March 1998", Federal Child Support Guidelines: Reference Manual, supra.

Note 11: Annotation to Sherman v. Sherman, supra, at p. 425.

Note 12: Annotation to Garard v. Garard (1998), 1998 CanLII 6482 (BC CA), 41 R.F.L. (4th) 1, at pp. 2-3.

Note 13: A judgment of the Ontario Superior Court of Justice, released May 23, 2000.

Note 14: This court, however, has never adopted the same rigid adherence to following its own decisions as has the English Court of Appeal. The strict English rule is set out in Young v. Bristol Aeroplane Co. Ltd., [1944] 2 All E.R. 293, [1944] K.B. 718. Judgments of our court that have declined to follow earlier decisions include R. v. Pierce (1997), 1997 CanLII 3020 (ON CA), 32 O.R. (3d) 321 at p. 335, 114 C.C.C. (3d) 23 at p. 38; Delta Acceptance Corp. v. Redman, 1966 CanLII 130 (ON CA), [1966] 2 O.R. 37 at pp. 50-52, 55 D.L.R. (2d) 481; Fire v. Longtin (1997), 1994 CanLII 1058 (ON CA), 17 O.R. (3d) 418, 112 D.L.R. (4th) 34; and R. v. Santeramo (1976), 1976 CanLII 1456 (ON CA), 32 C.C.C. (2d) 35 at p. 46, 36 C.R.N.S. 1.

Note 15: See R. v. White (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577, 108 C.C.C. (3d) 1 (C.A.); and R. v. Jenkins (1996), 1996 CanLII 2065 (ON CA), 29 O.R. (3d) 30, 107 C.C.C. (3d) 440 (C.A.).