Supreme Court of Canada
SUPREME COURT OF CANADA
Appeal Heard: April 25, 2024 Judgment Rendered: November 8, 2024 Docket: 40582
Parties
Between:
Roland Nikolaus Auer Appellant
and
Aysel Igorevna Auer and Attorney General of Canada Respondents
— and —
Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Saskatchewan, Trial Lawyers Association of British Columbia, HIV & AIDS Legal Clinic Ontario, Health Justice Program, Canadian Council for Refugees, City of Calgary, Chicken Farmers of Canada, Egg Farmers of Canada, Turkey Farmers of Canada, Canadian Hatching Egg Producers, National Association of Pharmacy Regulatory Authorities, Association québécoise des avocats et avocates en droit de l'immigration, Workers' Compensation Board of British Columbia, Canadian Association of Refugee Lawyers, Advocates for the Rule of Law and Ecojustice Canada Society Interveners
Indexed as: Auer v. Auer
2024 SCC 36
File No.: 40582.
2024: April 25; 2024: November 8.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
on appeal from the court of appeal for alberta
Headnote
Administrative law — Judicial review — Standard of review — Subordinate legislation — Vires — Federal child support guidelines challenged as ultra vires Governor in Council — Standard of review applicable to review of vires of subordinate legislation — Whether child support guidelines within scope of authority delegated to Governor in Council by enabling statute — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 26.1 — Federal Child Support Guidelines, SOR/97-175.
The father and the mother were married in 2004, had one child together, and divorced in 2008. Their child resides with the mother. The father paid child support to the mother, but brought an application for judicial review challenging the vires of the Federal Child Support Guidelines ("Guidelines"), which determine the amount of child support to be paid in case of divorce. The father argued that the Governor in Council ("GIC") exceeded its authority under s. 26.1(1) and (2) of the Divorce Act when enacting the Guidelines because they require a payer parent to pay a greater share of the child-related costs than the recipient parent.
The chambers judge held that following Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, reasonableness is the presumptive standard of review for assessing the vires of subordinate legislation, but that reasonableness review should be informed by the principles outlined in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64. The chambers judge concluded that the Guidelines are intra vires and dismissed the father's application for judicial review.
The Court of Appeal unanimously dismissed the father's appeal but was divided on the applicable standard of review. The majority held that Vavilov did not overtake Katz Group and that to be ultra vires for being inconsistent with the purpose of the enabling statute, true regulations such as those established by the GIC must be irrelevant, extraneous, or completely unrelated to that purpose. A concurring judge held that the reasonableness standard applies when reviewing the vires of the Guidelines, and that the criteria set out in Katz Group inform reasonableness review.
Held: The appeal should be dismissed.
Vavilov's robust reasonableness standard is the presumptive standard for reviewing the vires of subordinate legislation. In the instant case, the Guidelines fall reasonably within the GIC's scope of authority under the Divorce Act, having regard to the relevant constraints. Under s. 26.1(1), the GIC is granted extremely broad authority to establish guidelines respecting child support. Section 26.1(2) constrains this authority by requiring that the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute. The Guidelines respect this constraint.
In Vavilov, the Court set out a comprehensive framework for determining the standard of review that applies to any substantive review of an administrative decision and, in doing so, contemplated questions involving challenges to the vires of subordinate legislation. Vavilov's framework established a presumption of reasonableness review, subject to limited exceptions where the legislature has indicated that it intends a different standard to apply or where the rule of law requires that the correctness standard be applied. This framework applies to determining the standard for reviewing the vires of subordinate legislation. Subordinate legislation derives its validity from the statute which creates the power, and not from the executive body by which it is made. Accordingly, the identity of the decision maker who enacted it does not determine the standard of review. Unless the legislature has indicated otherwise, or the rule of law requires otherwise, the vires of subordinate legislation are to be reviewed on the reasonableness standard regardless of the delegate who enacted it, their proximity to the legislative branch or the process by which the subordinate legislation was enacted. In the instant case, the legislature has not indicated that the GIC's decision to establish the Guidelines must be reviewed on a standard other than reasonableness, nor does the rule of law require that questions of vires, in themselves, be reviewed for correctness. Accordingly, the presumptive standard of reasonableness applies.
In conducting a reasonableness review, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision. Many of the principles from the Court's decision in Katz Group continue to inform reasonableness review of the vires of subordinate legislation and remain good law. Specifically: (1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; (2) subordinate legislation benefits from a presumption of validity; (3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and (4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice.
All of the above principles from Katz Group, including the principle that subordinate legislation benefits from a presumption of validity, have been repeatedly affirmed by the Court's jurisprudence. The presumption of validity has two aspects: (1) it places the burden on challengers to demonstrate the invalidity of subordinate legislation; and (2) it favours an interpretive approach that reconciles the subordinate legislation with its enabling statute so that, where possible, the subordinate legislation is construed in a manner which renders it intra vires. When the reasonableness standard applies, challengers must demonstrate that the subordinate legislation does not fall within a reasonable interpretation of the delegate's statutory authority to overcome the presumption of validity. For subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be irrelevant, extraneous or completely unrelated to that statutory purpose — maintaining this threshold from Katz Group in the face of the significant sea change brought about by Vavilov would perpetuate uncertainty in the law, would be inconsistent with the robust reasonableness review detailed in Vavilov, and would undermine Vavilov's promise of simplicity, predictability and coherence. As such, there is a sound basis for a narrow departure from Katz Group.
Reasonableness review is possible in the absence of formal reasons. Most of the time, formal reasons are not provided for the enactment of subordinate legislation; however, Vavilov contemplated reasonableness review in the absence of formal reasons, including in the context of a vires review of subordinate legislation. The reasoning process can often be deduced from various sources. Furthermore, reasonableness review is not an examination of policy merits. A court's role is to review the legality or validity of the subordinate legislation, not to review whether it is necessary, wise, or effective in practice. Potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences. The reasonableness standard does not assess the reasonableness of the rules promulgated by the relevant authority nor is it an inquiry into its underlying political, economic, social, or partisan considerations; rather reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute. The governing statutory scheme, other applicable statutory or common law, and the principles of statutory interpretation are relevant constraints when reviewing the vires of subordinate legislation. The language chosen by the legislature in an enabling statute describes the limits and contours of a delegate's authority. The legislature may use precise and narrow language to delineate the power in detail, thereby tightly constraining the delegate's authority, or may use broad, open-ended or highly qualitative language, thereby conferring broad authority on the delegate. Statutory delegates must respect the legislature's choice in this regard. The scope of a statutory delegate's authority may also be constrained by other statutory or common law. Unless the enabling statute provides otherwise, when enacting subordinate legislation, statutory delegates must adopt an interpretation of their authority that is consistent with other legislation and applicable common law principles.
In addition, statutory delegates are empowered to interpret the scope of their authority when enacting subordinate legislation, but their interpretation must be consistent with the text, context, and purpose of the enabling statute. The words of the enabling statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, in accordance with the modern principle of statutory interpretation. In conducting a vires review, a court does not undertake a de novo analysis to determine the correct interpretation of the enabling statute and then ask whether, on that interpretation, the delegate had the authority to enact the subordinate legislation. Rather, the court ensures that the delegate's exercise of authority falls within a reasonable interpretation of the enabling statute, having regard to the relevant constraints.
Applying the reasonableness standard to review the vires of the Guidelines, the conclusion is that they are within the GIC's scope of authority and are therefore intra vires. The GIC's statutory grant of authority is extremely broad. The GIC was entitled to choose an approach to calculating child support that (1) does not take into account the recipient parent's income; (2) assumes that parents spend the same linear percentage of income on their children regardless of the parents' levels of income and the children's ages; (3) does not take into account government child benefits paid to recipient parents; (4) does not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) risks double counting certain special or extraordinary expenses. Each of these decisions fell squarely within the scope of the authority delegated to the GIC under the Divorce Act.
Cases Cited
Applied: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; explained: Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; referred to: Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; West Fraser Mills Ltd. v. British Columbia (Workers' Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595; Thorne's Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106; Terrigno v. Calgary (City), 2021 ABQB 41, 1 Admin. L.R. (7th) 134; Canada (Attorney General) v. Power, 2024 SCC 26; R. v. Kirkpatrick, 2022 SCC 33; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; Reference re Impact Assessment Act, 2023 SCC 23; Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17; La Rose v. Canada, 2023 FCA 241, 488 D.L.R. (4th) 340; Portnov v. Canada (Attorney General), 2021 FCA 171, [2021] 4 F.C.R. 501; Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, 8 Admin. L.R. (7th) 44; Reference as to the Validity of the Regulations in relation to Chemicals, [1943] S.C.R. 1; British Columbia (Attorney General) v. Le, 2023 BCCA 200, 482 D.L.R. (4th) 20; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763; Childs v. Childs (1990), 107 N.B.R. (2d) 176; Francis v. Baker, [1999] 3 S.C.R. 250; D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231; Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.
Statutes and Regulations Cited
Bill C-41, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, 2nd Sess., 35th Parl., 1996-97.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 26.1.
Federal Child Support Guidelines, SOR/97-175, ss. 1, 3 to 5, 7, 8, 9, 10.
Authors Cited
Blake, Sara. Clarity on the standard of review of regulations, December 20, 2022 (online: https://canliiconnects.org/en/commentaries/90432; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC36_1_eng.pdf).
Canada. Department of Justice. Child Support Team. Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report. Ottawa, 1997.
Canada. Federal/Provincial/Territorial Family Law Committee. Report and Recommendations on Child Support. Ottawa, 1995.
Canada. House of Commons. Standing Committee on Justice and Legal Affairs. Evidence, No. 54, 2nd Sess., 35th Parl., October 21, 1996, 17:10 to 17:15.
Canada. Senate. Standing Senate Committee on Social Affairs, Science and Technology. Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, No. 17, 2nd Sess., 35th Parl., December 11 and 12, 1996.
Daly, Paul. A Culture of Justification: Vavilov and the Future of Administrative Law. Vancouver: UBC Press, 2023.
Daly, Paul. Resisting which Siren's Call? Auer v Auer, 2022 ABCA 375 and TransAlta Generation Partnership v Alberta (Minister of Municipal Affairs), 2022 ABCA 381, November 24, 2022 (online: https://www.administrativelawmatters.com/blog/2022/11/24/resisting-which-sirens-call-auer-v-auer-2022-abca-375-and-transalta-generation-partnership-v-alberta-minister-of-municipal-affairs-2022-abca-381/; archived version: https://www.scc-csc.ca/cso-dce/2024SCC-CSC36_2_eng.pdf).
Fera, Norman. "New Child-Support Guidelines — A Brief Overview" (1997), 25 R.F.L. (4th) 356.
Finnie, Ross, Carolina Giliberti and Daniel Stripinis. An Overview of the Research Program to Develop a Canadian Child Support Formula. Ottawa: Department of Justice, 1995.
Keyes, John Mark. "Judicial Review of Delegated Legislation — The Road Beyond Vavilov" (2022), 35 C.J.A.L.P. 69.
Keyes, John Mark. Executive Legislation, 3rd ed. Toronto: LexisNexis, 2021.
Mancini, Mark P. "One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review" (2024), 55 Ottawa L. Rev. 245.
Payne, Julien D., and Marilyn A. Payne. Child Support Guidelines in Canada, 2020. Toronto: Irwin Law, 2020.
Salembier, Paul. Regulatory Law and Practice, 3rd ed. Toronto: LexisNexis, 2021.
Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis, 2022.
Wilson on Children and the Law, by Farrah Hudani, ed. Toronto: LexisNexis, 1994 (loose-leaf updated August 2024, release 142).
Appeal
APPEAL from a judgment of the Alberta Court of Appeal (Crighton, Pentelechuk and Feehan JJ.A.), 2022 ABCA 375, 52 Alta. L.R. (7th) 8, [2023] 3 W.W.R. 209, 81 R.F.L. (8th) 338, [2022] A.J. No. 1389 (Lexis), 2022 CarswellAlta 3388 (WL), affirming a decision of Rothwell J., 2021 ABQB 370, 32 Alta. L.R. (7th) 250, [2021] A.J. No. 651 (Lexis), 2021 CarswellAlta 1166 (WL). Appeal dismissed.
Counsel
Laura Warner, Ronald Robinson, Ryan Phillips and Paul Daly, for the appellant.
Tina Huizinga, K.C., for the respondent Aysel Igorevna Auer.
Michael H. Morris, Joseph Cheng and Amy Martin-LeBlanc, for the respondent the Attorney General of Canada.
Judie Im and Michele Valentini, for the intervener the Attorney General of Ontario.
Stéphane Rochette and Francesca Boucher, for the intervener the Attorney General of Quebec.
Emily Lapper and Christine Bant, for the intervener the Attorney General of British Columbia.
Kyle McCreary and Jared Biden, for the intervener the Attorney General of Saskatchewan.
Aubin P. Calvert and Devin Eeg, for the intervener the Trial Lawyers Association of British Columbia.
Mannu Chowdhury, for the interveners the HIV & AIDS Legal Clinic Ontario and the Health Justice Program.
Jamie Liew and Kamaljit Lehal, for the intervener the Canadian Council for Refugees.
Henry Chan and Andrea Cole, for the intervener the City of Calgary.
Alyssa Holland, David Wilson and Julie Mouris, for the interveners the Chicken Farmers of Canada, the Egg Farmers of Canada, the Turkey Farmers of Canada and the Canadian Hatching Egg Producers.
William W. Shores, K.C., and Annabritt N. Chisholm, for the intervener the National Association of Pharmacy Regulatory Authorities.
Lawrence David and Gjergji Hasa, for the intervener Association québécoise des avocats et avocates en droit de l'immigration.
Johanna Goosen, for the intervener the Workers' Compensation Board of British Columbia.
Andrew J. Brouwer and Erin V. Simpson, for the intervener the Canadian Association of Refugee Lawyers.
Ewa Krajewska, Peter Henein and Brandon Chung, for the intervener the Advocates for the Rule of Law.
Lindsay Beck and Joshua Ginsberg, for the intervener the Ecojustice Canada Society.
Reasons for Judgment
The judgment of the Court was delivered by
Table of Contents
| Paragraph | |
|---|---|
| I. Overview | 1 |
| II. Facts | 7 |
| III. Judicial History | 10 |
| A. Court of Queen's Bench of Alberta, 2021 ABQB 370, 32 Alta. L.R. (7th) 250 | 10 |
| B. Court of Appeal of Alberta, 2022 ABCA 375, 52 Alta. L.R. (7th) 8 | 14 |
| IV. Issues | 18 |
| V. Standard of Review | 19 |
| A. Vavilov Is the Starting Point for Determining the Appropriate Standard of Review | 19 |
| B. The Vavilov Framework Applies When Reviewing the Vires of Subordinate Legislation | 21 |
| C. Reasonableness Is the Presumptive Standard for Reviewing the Vires of Subordinate Legislation | 24 |
| D. What Is the Role of Katz Group? | 29 |
| (1) Many of the Principles From Katz Group Continue To Apply | 29 |
| (2) The "Irrelevant", "Extraneous" or "Completely Unrelated" Threshold Is No Longer Relevant | 41 |
| E. How To Conduct a Reasonableness Review of the Vires of Subordinate Legislation Under the Vavilov Framework | 50 |
| (1) Reasonableness Review Is Possible in the Absence of Formal Reasons | 52 |
| (2) Reasonableness Review Is Not an Examination of Policy Merits | 55 |
| (3) The Relevant Constraints | 59 |
| (a) Governing Statutory Scheme | 61 |
| (b) Other Statutory or Common Law | 63 |
| (c) Principles of Statutory Interpretation | 64 |
| VI. Analysis | 67 |
| A. Overview of the Child Support Guidelines | 67 |
| B. Mr. Auer's Challenge | 72 |
| C. The Child Support Guidelines Are Within the GIC's Scope of Authority | 75 |
| (1) The GIC's Statutory Grant of Authority Is Extremely Broad | 75 |
| (2) The GIC Was Authorized Not To Take Into Account the Recipient Parent's Income in Calculating the Table Amounts | 80 |
| (3) The GIC Was Authorized To Assume That Parents Spend the Same Linear Percentage of Their Income on Their Children | 90 |
| (4) The GIC Was Authorized Not To Take Into Account Government Child Benefits Paid to the Recipient Parent in Calculating Child Support Awards | 95 |
| (5) The GIC Was Authorized Not To Take Into Account the Payer Parent's Direct Spending When That Parent Exercises Less Than 40 Percent of Annual Parenting Time | 98 |
| (6) The GIC Was Authorized To Establish a Separate Category of Special or Extraordinary Expenses | 105 |
| VII. Conclusion | 114 |
I. Overview
1The Federal Child Support Guidelines, SOR/97-175 ("Child Support Guidelines"), established by the Governor in Council ("GIC") under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), determine the amount of child support to be paid in case of divorce, except in the province of Quebec. The appellant, Roland Nikolaus Auer, challenges the vires of the Child Support Guidelines. This challenge requires our Court to determine whether the GIC acted within the scope of its delegated authority in establishing the Child Support Guidelines.
2To answer this question, our Court has to determine the standard of review that applies when reviewing the vires of subordinate legislation. Doing so requires the Court to resolve debates about the continued relevance of Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, in light of our Court's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
3I conclude that the reasonableness standard as set out in Vavilov presumptively applies when reviewing the vires of subordinate legislation. I also conclude that some of the principles from Katz Group continue to inform such reasonableness review: (1) subordinate legislation must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object; (2) subordinate legislation benefits from a presumption of validity; (3) the challenged subordinate legislation and the enabling statute should be interpreted using a broad and purposive approach to statutory interpretation; and (4) a vires review does not involve assessing the policy merits of the subordinate legislation to determine whether it is necessary, wise, or effective in practice.
4However, for subordinate legislation to be found ultra vires on the basis that it is inconsistent with the purpose of the enabling statute, it no longer needs to be "irrelevant", "extraneous" or "completely unrelated" to that statutory purpose. Continuing to maintain this threshold from Katz Group would be inconsistent with the robust reasonableness review detailed in Vavilov and would undermine Vavilov's promise of simplicity, predictability and coherence.
5The Child Support Guidelines are intra vires the GIC. They fall within a reasonable interpretation of the scope of the GIC's authority under s. 26.1 of the Divorce Act, having regard to the relevant constraints. Section 26.1(1) of the Divorce Act grants the GIC extremely broad authority to establish guidelines respecting child support. This authority is constrained by s. 26.1(2) of the Divorce Act, which requires that the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute. The Child Support Guidelines respect this constraint.
6Contrary to Mr. Auer's submissions, in selecting an approach to calculating child support, the GIC was authorized to: (1) not take into account the recipient parent's income; (2) assume that parents spend the same linear percentage of income on their children regardless of the parents' levels of income and the children's ages; (3) not take into account government child benefits paid to recipient parents; (4) not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) risk the double counting of certain special or extraordinary expenses. Each of these decisions falls squarely within the scope of the authority delegated to the GIC under the Divorce Act. Accordingly, I would dismiss Mr. Auer's appeal.
II. Facts
7Roland Auer and the respondent Aysel Igorevna Auer were married in 2004. They had one child together in 2005 and divorced in 2008. Their child resides with Ms. Auer. Mr. Auer has paid both child and spousal support to Ms. Auer. Mr. Auer also has children from other marriages to whom he owes, or has owed, support.
8Mr. Auer brought an application for judicial review challenging the vires of the Child Support Guidelines. He argued that the GIC exceeded its authority under s. 26.1(1) and (2) of the Divorce Act when enacting the Child Support Guidelines because they require a payer parent to pay a greater share of the child-related costs than the recipient parent. Ms. Auer did not participate in the application before the Court of Queen's Bench of Alberta, and the Attorney General of Canada was granted leave to intervene with broad rights, such that he is now a respondent in this matter.
9Mr. Auer and Ms. Auer have ongoing applications before the Court of King's Bench of Alberta concerning child and spousal support issues. Those applications have been heard and are subject to the outcome of this appeal.
III. Judicial History
A. Court of Queen's Bench of Alberta, 2021 ABQB 370, 32 Alta. L.R. (7th) 250
10The chambers judge dismissed Mr. Auer's application for judicial review. He held that, following Vavilov, the presumptive standard of review for assessing the vires of subordinate legislation is reasonableness, but that reasonableness review should be informed by the principles outlined in Katz Group.
11The chambers judge held that s. 26.1(1) of the Divorce Act, which authorizes the GIC to establish guidelines respecting orders for child support, confers the GIC an "extremely broad grant of authority", and that the Child Support Guidelines' provisions were not irrelevant, extraneous or unrelated to the purpose of child support (para. 52; see also paras. 76 and 78).
12Mr. Auer argued that the Child Support Guidelines are ultra vires because they require the payer parent to pay a greater share of the child-related costs than the recipient parent. He relied heavily on s. 26.1(2) of the Divorce Act, which he said imposes a specific constraint on the GIC's regulation-making authority. Section 26.1(2) provides that the Child Support Guidelines "shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation". Mr. Auer argued that specific aspects of the Child Support Guidelines violate the constraint imposed in s. 26.1(2) of the Divorce Act by requiring the payer parent to bear a greater share of the child-related costs than the recipient parent. These aspects include the presumption that both parents earn the same income, a court's authority to award special or extraordinary expenses under s. 7 of the Child Support Guidelines and the decision not to include child tax benefits as part of the recipient parent's income.
13The chambers judge accepted that s. 26.1(2) "informs, and to a degree, constrains" the GIC's grant of authority, but held that this constraint must be weighed against the GIC's extremely broad grant of authority under s. 26.1(1) (para. 52). In his view, most of the issues Mr. Auer raised fell outside of a vires review because they sought to impugn the GIC's policy decisions and ignored the GIC's broad discretion under the Divorce Act. The chambers judge ultimately concluded that the Child Support Guidelines are intra vires.
B. Court of Appeal of Alberta, 2022 ABCA 375, 52 Alta. L.R. (7th) 8
14The Court of Appeal unanimously dismissed Mr. Auer's appeal. However, the court was divided on the standard of review applicable to a review of the vires of subordinate legislation.
15Writing for the majority, Pentelechuk J.A. held that Vavilov did not overtake Katz Group. In her view, to be ultra vires for being inconsistent with the purpose of the enabling statute, "true regulations" (para. 34), such as those established by the GIC, which create law through the exercise of a legislative function, must be "irrelevant", "extraneous" or "completely unrelated" to that purpose (Katz Group, at para. 28). However, the reasonableness standard applies when reviewing "bylaws, rules, and regulations made by administrative tribunals or municipal governments" (C.A. reasons, at para. 34; see also para. 20).
16Like the chambers judge, Pentelechuk J.A. concluded that the Child Support Guidelines are not "irrelevant", "extraneous" or "completely unrelated" to the Divorce Act's purpose. She noted that "[w]hile the Guidelines may not be perfect, time has demonstrated that they have achieved the stated intent of predictability and ease of use" (para. 113). She found that the chambers judge's analysis was thorough and properly alive to the limitations of reviewing subordinate legislation and to the fact that Mr. Auer's arguments were inextricably woven with policy disputes. Thus, she dismissed Mr. Auer's appeal.
17Justice Feehan concurred in the result but held that the reasonableness standard under the Vavilov framework applies when reviewing the vires of the Child Support Guidelines. In his view, the criteria set out in Katz Group inform reasonableness review.
IV. Issues
18The issues on appeal are as follows:
What is the applicable standard of review when reviewing the vires of subordinate legislation?
Are the Child Support Guidelines ultra vires the GIC under the Divorce Act?
V. Standard of Review
A. Vavilov Is the Starting Point for Determining the Appropriate Standard of Review
19Vavilov represented a "recalibration of the governing approach to the choice of standard of review analysis and a clarification of the proper application of the reasonableness standard" (para. 143). It "set out a holistic revision of the framework for determining the applicable standard of review" when conducting a substantive review of an administrative decision (ibid.). Our Court explained that Vavilov is the starting point: "A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case" (ibid.).
20That said, Vavilov was not itself a case about the vires of subordinate legislation. It involved the judicial review of a decision by the Canadian Registrar of Citizenship to cancel Mr. Vavilov's certificate of citizenship on the basis that he was not a Canadian citizen under s. 3(1)(a) of the Citizenship Act, R.S.C. 1985, c. C-29, because he fell within the ambit of an exception set out at s. 3(2)(a). Thus, in Vavilov, our Court did not explicitly settle the standard of review that applies when reviewing the vires of subordinate legislation (J. M. Keyes, "Judicial Review of Delegated Legislation — The Road Beyond Vavilov" (2022), 35 C.J.A.L.P. 69, at p. 100). However, as I explain below, Vavilov provides the appropriate framework for determining the standard of review in this context. Under that framework, I conclude that the reasonableness standard applies to the vires challenge in this case.
B. The Vavilov Framework Applies When Reviewing the Vires of Subordinate Legislation
21In Vavilov, our Court set out a comprehensive framework for determining the standard of review that applies to any substantive review of an administrative decision (para. 17). In doing so, this Court brought "greater coherence and predictability to this area of law" and eliminated the need for courts to engage in a contextual inquiry to determine the appropriate standard of review (paras. 10 and 17). Our Court recognized that "the sheer variety of decisions and decision makers" posed a challenge to developing a coherent and unified approach to judicial review (para. 88). We ensured that the revised framework "accommodates all types of administrative decision making, in areas that range from immigration, prison administration and social security entitlements to labour relations, securities regulation and energy policy" (para. 11). These include decisions of "specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more . . . vary[ing] in complexity and importance, ranging from the routine to the life-altering . . . includ[ing] matters of 'high policy' on the one hand and 'pure law' on the other" (para. 88).
22In setting out Vavilov's comprehensive framework, our Court expressly contemplated questions of vires. Specifically, this Court ceased to recognize jurisdictional questions — also referred to as "true questions of jurisdiction or vires" — as a distinct category of questions attracting correctness review (paras. 65-67 and 200). In doing so, we expressly referred to cases involving challenges to the vires of subordinate legislation, including Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, and West Fraser Mills Ltd. v. British Columbia (Workers' Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635 (Vavilov, at para. 66). This Court explained that "it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute", especially where, as in Green and West Fraser Mills, "the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute" (Vavilov, at para. 66, citing Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at para. 111, per Brown J., concurring).
23Vavilov's framework applies to determining the standard for reviewing the vires of subordinate legislation. Vavilov set out a comprehensive framework for determining the applicable standard of review and, in doing so, contemplated questions of vires.
C. Reasonableness Is the Presumptive Standard for Reviewing the Vires of Subordinate Legislation
24Vavilov's framework established a presumption of reasonableness review. It set out limited exceptions where the legislature has indicated that it intends a different standard to apply or where the rule of law requires that the correctness standard be applied (para. 17). The questions for which the rule of law requires that the correctness standard be applied include: (1) constitutional questions that require a final and determinate answer from the courts; (2) general questions of law of central importance to the legal system as a whole; and (3) questions related to the jurisdictional boundaries between two or more administrative bodies (para. 53).
25No exception to the presumption of reasonableness review applies in this case. The legislature has not indicated that the GIC's decision to establish the Child Support Guidelines must be reviewed on a standard other than reasonableness, nor does the rule of law require that the correctness standard be applied to a vires review of the Child Support Guidelines.
26In Vavilov, our Court explained that the rule of law does not require that questions of vires, in themselves, be reviewed for correctness (paras. 67-69 and 109; see also J. M. Keyes, Executive Legislation (3rd ed. 2021), at pp. 171-72). A robust reasonableness review is sufficient to ensure that statutory delegates act within the scope of their lawful authority (Vavilov, at paras. 67-69 and 109). Further, when explaining that reasonableness review can be conducted even in the absence of reasons, our Court cited Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, and Green, both of which involved a review of the vires of subordinate legislation (Vavilov, at para. 137).
27All of this indicates that Vavilov's robust reasonableness standard is the default standard when reviewing the vires of subordinate legislation (Keyes (2021), at p. 171; see also Keyes (2022); P. Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (2023), at pp. 146-47; M. P. Mancini, "One Rule to Rule Them All: Subordinate Legislation and the Law of Judicial Review" (2024), 55 Ottawa L. Rev. 245). However, in exceptional cases, a vires review may engage a question that the rule of law requires be reviewed for correctness. In such cases, the presumption of reasonableness review may be rebutted. For example, a challenge to the validity of subordinate legislation on the basis that it fails to respect the division of powers between Parliament and provincial legislatures would require that the correctness standard be applied.
28Reviewing the vires of the Child Support Guidelines does not engage a question that the rule of law requires be reviewed for correctness. Accordingly, the presumptive standard of reasonableness applies in this case.
D. What Is the Role of Katz Group?
(1) Many of the Principles From Katz Group Continue To Apply
29In Katz Group, our Court upheld the validity of Ontario regulations adopted by the Lieutenant Governor in Council that aimed to control the price of prescription drugs. Justice Abella, writing for our Court, did not discuss the applicable standard of review. However, she outlined the following principles for assessing the vires of subordinate legislation:
"A successful challenge to the vires of regulations requires that they be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate" (para. 24);
"Regulations benefit from a presumption of validity . . . . This presumption has two aspects: it places the burden on challengers to demonstrate the invalidity of regulations . . . and it favours an interpretive approach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires" (para. 25 (emphasis deleted));
"Both the challenged regulation and the enabling statute should be interpreted using a 'broad and purposive approach . . . consistent with the Court's approach to statutory interpretation generally'" (para. 26, quoting United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, at para. 8);
"This inquiry does not involve assessing the policy merits of the regulations to determine whether they are 'necessary, wise, or effective in practice'" (para. 27, quoting Jafari v. Canada (Minister of Employment and Immigration), [1995] 2 F.C. 595 (C.A.), at p. 604). "It is not an inquiry into the underlying 'political, economic, social or partisan considerations'" or an assessment of whether the regulations "will actually succeed at achieving the statutory objectives" (para. 28, quoting Thorne's Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106, at pp. 112-13);
The regulations "must be 'irrelevant', 'extraneous' or 'completely unrelated' to the statutory purpose to be found ultra vires on the basis of inconsistency with statutory purpose" (para. 28).
30For convenience, I will refer to the final principle as the "irrelevant", "extraneous" or "completely unrelated" threshold.
31In setting out Vavilov's comprehensive framework for determining the applicable standard of review, our Court did not entirely discard prior jurisprudence. Rather, the Court explicitly stated that "past precedents will often continue to provide helpful guidance" (para. 143). This remains true for the principles in Katz Group.
32In my view, all of the above-mentioned principles in Katz Group, except for the "irrelevant", "extraneous" or "completely unrelated" threshold, remain good law and continue to inform the review of the vires of subordinate legislation. As I will explain, the significant sea change brought about by Vavilov is a sound basis for departing from this single aspect of Katz Group.
33For greater clarity, the principle that subordinate legislation "must be consistent both with specific provisions of the enabling statute and with its overriding purpose or object" continues to apply when conducting a vires review (References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 87; Reference re Impact Assessment Act, 2023 SCC 23, at paras. 85-86; Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 75).
34These well-established principles are consistent with Vavilov, and they should continue to be applied in accordance with the foundational common law principle of stare decisis.
35As explained, Vavilov recognized the continued relevance and application of prior jurisprudence insofar as that jurisprudence is consistent with Vavilov's framework for determining the appropriate standard of review and its principles governing robust reasonableness review. Nothing in Vavilov displaces the principles in Katz Group discussed above. Accordingly, these principles continue to inform the review of the vires of subordinate legislation.
36The principle that subordinate legislation benefits from a presumption of validity has been criticized by some for being inconsistent with Vavilov (see Portnov v. Canada (Attorney General), 2021 FCA 171, [2021] 4 F.C.R. 501, at paras. 20-22; Innovative Medicines Canada v. Canada (Attorney General), 2022 FCA 210, 8 Admin. L.R. (7th) 44, at paras. 20-21). I disagree.
37In Katz Group, our Court explained that this presumption has two aspects: (1) "it places the burden on challengers to demonstrate the invalidity of [subordinate legislation]"; and (2) "it favours an interpretive approach that reconciles the [subordinate legislation] with its enabling statute so that, where possible, the [subordinate legislation] is construed in a manner which renders it intra vires" (para. 25).
38The first aspect — that the burden is on challengers to demonstrate the invalidity of subordinate legislation — is uncontroversial. Indeed, in Vavilov, our Court explained that where an administrative decision is reviewed for reasonableness, "[t]he burden is on the party challenging the decision to show that it is unreasonable" (para. 100).
39The second aspect — that, where possible, subordinate legislation should be construed in a manner that renders it intra vires — is also consistent with Vavilov. This aspect does not heighten the burden that challengers would otherwise face pursuant to Vavilov. The burden on challengers depends on the specific facts of each case. The presumption simply recognizes that, where two reasonable interpretations of the scope of a statutory delegate's authority are available — one that would render the subordinate legislation intra vires and one that would render it ultra vires — the court should prefer the former. This is consistent with the principle that reviewing courts should read an administrative decision in light of the record and with "due sensitivity to the administrative setting in which it was made" (Vavilov, at para. 97).
40All of these principles from Katz Group, including the principle that subordinate legislation benefits from a presumption of validity, have been repeatedly affirmed by our Court (see Vavilov, at paras. 108 and 110; References re Greenhouse Gas Pollution Pricing Act, at para. 87; Reference re Impact Assessment Act, at paras. 85-86; Canadian Council for Refugees, at para. 75).
(2) The "Irrelevant", "Extraneous" or "Completely Unrelated" Threshold Is No Longer Relevant
41Writing for a majority of the Court of Appeal, Pentelechuk J.A. held that the vires of the Child Support Guidelines was to be reviewed on the basis of the "irrelevant", "extraneous" or "completely unrelated" threshold, instead of on the reasonableness standard in accordance with Vavilov. I disagree.
42Justice Pentelechuk distinguished between "true regulations", which create law through the exercise of a legislative function, such as those passed by the GIC, and "bylaws, rules, and regulations made by administrative tribunals or municipal governments" (paras. 20 and 34). She held that the former should be reviewed on the basis of the "irrelevant", "extraneous" or "completely unrelated" threshold, whereas the latter should be reviewed on the reasonableness standard.
43According to Pentelechuk J.A., the appropriate standard for reviewing the vires of subordinate legislation depends on the identity of the decision maker who enacted it. I disagree. The identity of the decision maker does not determine the standard of review. "Regulations 'derive their validity from the statute which creates the power, and not from the executive body by which they are made'" (Reference as to the Validity of the Regulations in relation to Chemicals, [1943] S.C.R. 1, at p. 15, per Duff C.J., citing Munn v. Illinois, 94 U.S. 113 (1876), at p. 134). There is nothing in Vavilov to suggest that the applicable standard of review for assessing the vires of subordinate legislation varies depending on the identity of the decision maker by whom it was enacted, the proximity of that decision maker to the legislative branch, or the process by which the subordinate legislation was enacted. Indeed, Vavilov's comprehensive framework was designed to bring "greater coherence and predictability to this area of law" (para. 10), which is undermined if the standard of review fluctuates depending on the identity of the decision maker.
44To summarize, unless the legislature has indicated otherwise or if a matter invokes an issue pertaining to the rule of law which would require a review on the basis of correctness, the vires of subordinate legislation are to be reviewed on the reasonableness standard regardless of the delegate who enacted it, their proximity to the legislative branch or the process by which the subordinate legislation was enacted.
45In concurring reasons, Feehan J.A. held that while the vires of subordinate legislation are to be reviewed for reasonableness pursuant to Vavilov, the "irrelevant", "extraneous" or "completely unrelated" threshold informs that analysis. He explained that the presumption that subordinate legislation is valid means that regulations must be found to fall completely outside the enabling statute's purpose before they can be struck down. I also disagree with this approach.
46Reasonableness review ensures that courts intervene in administrative matters where it is truly necessary to do so to safeguard the legality, rationality and fairness of the administrative process (Vavilov, at para. 13). While reasonableness review "finds its starting point in the principle of judicial restraint" (ibid.), it does not mean that courts simply defer to administrative decision makers in all circumstances. Vavilov's robust reasonableness review requires a genuinely searching inquiry (Vavilov, at paras. 13, 72, and 83).
47This inconsistency is of particular importance when considering "the concern that an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended" (Vavilov, at para. 109; see also para. 68). In Vavilov, our Court explained that robust reasonableness review "will ensure that administrative decision makers do not overstep their legal authority" (para. 68). Retaining the "irrelevant", "extraneous" or "completely unrelated" threshold would be inconsistent with this robust reasonableness review because it would allow delegates to enact subordinate legislation that is inconsistent with the purpose of the enabling statute, so long as that legislation is not completely unrelated to that purpose. This is irreconcilable with Vavilov's requirement that the delegate's exercise of authority be "justified in relation to the relevant factual and legal constraints that bear on the decision" (para. 99).
48Further, Vavilov sought to bring simplicity, predictability and coherence to the analysis for determining the appropriate standard of review. Our Court noted that reasonableness is a single standard that applies in different contexts (para. 89). Vavilov's objective of providing simplicity, predictability and coherence would be undermined if courts were required to apply a distinct threshold to assess the vires of "true regulations" enacted by "high-level government actors" such as the GIC. It would also create a dual-track regime where different standards apply to different types of subordinate legislation.
49Ultimately, we should depart from the "irrelevant", "extraneous" or "completely unrelated" threshold established in Katz Group because its rationale was eroded by Vavilov and because continuing to maintain it would "create or perpetuate uncertainty in the law" (Vavilov, at para. 20; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 527).
E. How To Conduct a Reasonableness Review of the Vires of Subordinate Legislation Under the Vavilov Framework
50In conducting a reasonableness review, "the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision" (Vavilov, at para. 99). The court must consider the constraints imposed by the legal and factual context in which a decision is made (paras. 90 and 105-35).
51Vavilov recognized two types of fundamental flaws that would make an administrative decision unreasonable: (1) there is a failure of rationality internal to the reasoning process; or (2) the decision is untenable in light of the factual and legal constraints that bear on it (para. 101). In what follows, I address three aspects of reasonableness review of the vires of subordinate legislation under the Vavilov framework: (1) reasonableness review is possible in the absence of formal reasons; (2) reasonableness review is not an examination of policy merits; and (3) the relevant constraints.
(1) Reasonableness Review Is Possible in the Absence of Formal Reasons
52Most of the time formal reasons are not provided for the enactment of subordinate legislation (Vavilov, at para. 137). However, Vavilov contemplated reasonableness review in the absence of formal reasons, including in the context of a vires review of subordinate legislation (ibid., referring to Catalyst Paper and Green). The reasoning process can often be deduced from various sources, including "the record of submissions, an accompanying statement of purpose, or specific recitals" (ibid.).
53In Catalyst Paper, our Court reviewed the validity of municipal taxation bylaws. Chief Justice McLachlin noted that "[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw" (para. 29). Courts can also look to legislative history and context to understand the reasoning behind subordinate legislation. As Daly explains:
. . . something akin to a form of justification — whether a record of submissions, an accompanying statement of purpose, or specific recitals — may sometimes accompany regulatory action. Specifically — especially in the modern era — the problem of having neither a record nor reasons is less likely to present itself.
(pp. 278-79, citing J. M. Keyes, "Judicial Review of Delegated Legislation: The Long and Winding Road to Vavilov", in University of Ottawa Faculty of Law, Working Paper No. 2020-14 (June 18, 2020), at p. 11, and J. M. Keyes, Executive Legislation (2nd ed. 2010), at ch. 4.)
54Even where such sources are not available, "it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli [v. Duplessis, [1959] S.C.R. 121]" (Vavilov, at para. 137). In this case, there is ample material in the record to understand the GIC's reasoning, including technical reports, legislative debates and the text of the Child Support Guidelines themselves.
(2) Reasonableness Review Is Not an Examination of Policy Merits
55Justice Pentelechuk was of the view that applying Vavilov's reasonableness standard when reviewing the vires of subordinate legislation would violate the principle of separation of powers because the court would be examining the policy merits of the subordinate legislation (paras. 58-59 and 63). I disagree.
56With respect, this concern is misplaced. As Paul Salembier explains, "[t]he reasonableness standard does not assess the reasonableness of the rules promulgated by the regulation-making authority; rather, it addresses the reasonableness of the regulation-making authority's interpretation of its enabling legislation" (Regulatory Law and Practice (3rd ed. 2021), at p. 278). Accordingly, a vires review under the reasonableness standard "is not an inquiry into its underlying political, economic, social, or partisan considerations" (Katz Group, at para. 28, citing Thorne's Hardware, at pp. 112-13).
57A court must be mindful of its proper role when reviewing the vires of subordinate legislation, especially when it relies on the record, other sources or the context to ascertain the delegate's reasoning process. Mancini explains:
Importantly courts must organize these various sources properly to preserve the focus on the limiting statutory language. Again, the reasonableness review should not focus on the content of the inputs into the process or the policy merits of those inputs. Rather, courts must key these sources to the question of statutory authority.
("One Rule to Rule Them All", at p. 278.)
58The potential or actual consequences of the subordinate legislation are relevant only insofar as a reviewing court must determine whether the statutory delegate was reasonably authorized to enact subordinate legislation that would have such consequences. Whether those consequences are in themselves desirable is not a question for the reviewing court.
(3) The Relevant Constraints
59In Vavilov, our Court explained that "[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers" (para. 105). Reviewing the vires of subordinate legislation is fundamentally an exercise of statutory interpretation to ensure that the delegate has acted within the scope of their lawful authority under the enabling statute.
60Accordingly, the governing statutory scheme, other applicable statutory or common law and the principles of statutory interpretation are particularly relevant constraints when reviewing the vires of subordinate legislation (Keyes (2021), at p. 175).
(a) Governing Statutory Scheme
61"Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision" (Vavilov, at paras. 108-9; Mancini, at p. 275).
62The language chosen by the legislature in an enabling statute describes the limits and contours of a delegate's authority (Vavilov, at para. 110). The legislature may use precise and narrow language to delineate the power in detail, thereby tightly constraining the delegate's authority. Alternatively, the legislature may use broad, open-ended or highly qualitative language, thereby conferring broad authority on the delegate. Statutory delegates must respect the legislature's choice in this regard.
(b) Other Statutory or Common Law
63The scope of a statutory delegate's authority may also be constrained by other statutory or common law. Unless the enabling statute provides otherwise, when enacting subordinate legislation, statutory delegates must adopt an interpretation of their authority that is consistent with other legislation and applicable common law principles.
(c) Principles of Statutory Interpretation
64Statutory delegates are empowered to interpret the scope of their authority when enacting subordinate legislation. Their interpretation must, however, be consistent with the text, context and purpose of the enabling statute. The words of the enabling statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, in accordance with the modern principle of statutory interpretation (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87).
65In conducting a vires review, a court does not undertake a de novo analysis to determine the correct interpretation of the enabling statute and then ask whether, on that interpretation, the delegate had the authority to enact the subordinate legislation. Rather, the court ensures that the delegate's exercise of authority falls within a reasonable interpretation of the enabling statute, having regard to the relevant constraints.
66In what follows, I apply the reasonableness standard to review the vires of the Child Support Guidelines.
VI. Analysis
A. Overview of the Child Support Guidelines
67In Canada, child support has been legislated since 1855. Early statutory schemes vested judges with discretion to determine child support amounts based on need. Judges were thus required to decide child support awards based on the circumstances of each individual case. This led to inconsistent and unpredictable awards, as well as a high rate of non-compliance with court orders (Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, at paras. 34-35).
68As Martin J. explained in her concurring reasons in Michel, the objective of the Child Support Guidelines "was to remedy this situation by maintaining the principles core to child support while achieving far greater predictability, consistency, and efficiency" (para. 58). On March 6, 1996, the Federal/Provincial/Territorial Family Law Committee released a report that recommended the adoption of child support guidelines (Report and Recommendations on Child Support (1995)). The Committee recommended a formula for calculating child support amounts based on the income of the payer parent (the "non-custodial parent") and the number of children.
69On May 1, 1997, the GIC established the Child Support Guidelines, which introduced a "radical change" to child support rights and obligations under the Divorce Act (Payne and Payne, at p. 1). The Child Support Guidelines moved away from a discretionary, needs-based approach to child support towards a formulaic approach that was expected to provide consistency, predictability and efficiency in the determination of child support awards.
70Section 3 of the Child Support Guidelines "creates a presumptive rule whereby, unless otherwise provided by the Divorce Act or under the Guidelines, the amount of a child support order for children under the age of majority is to be determined by reference to the applicable table" (D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 53, cited in Michel, at para. 47). The applicable table sets out the amount of support payable based on the province in which the payer parent resides and the payer parent's income.
71A proper construction of a provision of the Child Support Guidelines "requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness and flexibility on the other" (Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 35; see also Michel, at para. 48).
B. Mr. Auer's Challenge
72Mr. Auer bears the burden of proving that the Child Support Guidelines are ultra vires (Katz Group, at para. 25). He submits that the Child Support Guidelines are ultra vires because they violate two constraints on the GIC's authority: (1) the specific provisions of s. 26.1(1)(a) to (h) of the Divorce Act; and (2) the principle set out in s. 26.1(2) of the Divorce Act "that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation".
73According to Mr. Auer, the Child Support Guidelines violate these two constraints by requiring the payer parent to bear more than their fair share of direct child-related costs. This is because (1) the table amounts presuppose that the recipient parent has no income; (2) the table amounts assume that parents spend the same linear percentage of income on their children regardless of income or the children's ages; (3) the table amounts do not account for the government child benefits paid to the recipient parent; (4) the table amounts fail to take into account the payer parent's direct spending when the payer parent exercises less than 40 percent of annual parenting time; and (5) s. 7 of the Child Support Guidelines permits double counting of expenses.
74Below, I will review each of Mr. Auer's submissions, having regard to the GIC's authority under the Divorce Act. I conclude that the Child Support Guidelines are intra vires the GIC.
C. The Child Support Guidelines Are Within the GIC's Scope of Authority
(1) The GIC's Statutory Grant of Authority Is Extremely Broad
75Section 26.1(1) of the Divorce Act grants the GIC extremely broad authority to establish guidelines respecting orders for child support:
26.1 (1) The Governor in Council may establish guidelines respecting orders for child support, including, but without limiting the generality of the foregoing, guidelines
(a) respecting the way in which the amount of an order for child support is to be determined;
(b) respecting the circumstances in which discretion may be exercised in the making of an order for child support;
(c) authorizing a court to require that the amount payable under an order for child support be paid in periodic payments, in a lump sum or in a lump sum and periodic payments;
(d) authorizing a court to require that the amount payable under an order for child support be paid or secured, or paid and secured, in the manner specified in the order;
(e) respecting the circumstances that give rise to the making of a variation order in respect of a child support order;
(f) respecting the determination of income for the purposes of the application of the guidelines;
(g) authorizing a court to impute income for the purposes of the application of the guidelines; and
(h) respecting the production of information relevant to an order for child support and providing for sanctions and other consequences when that information is not provided.
76The use of the language "without limiting the generality of the foregoing" confirms that this plenary power is not limited by anything that follows in s. 26.1(1) (see Vavilov, at para. 110; R. Sullivan, The Construction of Statutes (7th ed. 2022), at pp. 281-82). Section 26.1(1) grants the GIC authority to establish guidelines respecting all aspects of the making and variation of child support orders, including the way in which child support is to be calculated and the circumstances in which judicial discretion may be exercised.
77However, this power is not unrestricted. Section 26.1(2) provides as follows:
(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.
78Mr. Auer interprets "the principle that spouses have a joint financial obligation to maintain the children of the marriage" to mean that both parents must contribute equally to child-related costs. However, the text of s. 26.1(2) does not support this interpretation. Section 26.1(2) refers to "relative abilities to contribute", not "equal contributions".
79Section 26.1(2) does not require that each parent make an equal financial contribution to maintaining their children. Rather, it states that each parent has a "joint financial obligation to maintain" their children "in accordance with their relative abilities to contribute". Read in context, s. 26.1(2) simply means that both parents must contribute to the costs of raising the children based on their respective financial capacities.
(2) The GIC Was Authorized Not To Take Into Account the Recipient Parent's Income in Calculating the Table Amounts
80Mr. Auer submits that the presumptive table amounts in the Child Support Guidelines violate the requirement in s. 26.1(2) that support awards be based on the parents' "relative abilities to contribute". He argues that by setting the table amounts based solely on the payer parent's income, the Child Support Guidelines ignore the recipient parent's income and therefore require the payer parent to bear the full financial burden of child support.
81The formula on which the table amounts are based assumes that the payer parent and recipient parent have the same income (chambers judge's reasons, at para. 86). It only considers the payer parent's income, as assessed against the income distribution of Canadian families. In the formula, the recipient parent's contribution to child-related costs is assumed to be equivalent to the payer parent's contribution (DOJ Report, at p. 6).
82Adopting a formula for calculating the table amounts that does not expressly consider the recipient parent's income falls within a reasonable interpretation of the authority granted to the GIC. I reach this conclusion for the following reasons.
83The formula selected by the GIC for calculating the table amounts was recommended by the Committee after extensive research and consultation. In its report, the Committee justified the decision not to include the recipient parent's income in the formula for the table amounts:
Although the formula appears to be based solely on the non-custodial parent's income, this does not imply that the custodial parent does not contribute to the financial needs of the child. On the contrary, it is assumed that the custodial parent is also contributing to the child's well-being according to his/her income. This contribution, however, is implicit in the determination of child support.
(Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report (1997) (the "DOJ Report"), at p. 6.)
84The Committee considered different options for the formula and how the awards should change with the recipient parent's income:
With some other formulas the award rises; with others it falls; while with still others it does not change at all. Thus, there is considerable disagreement over how awards should change with the custodial parent's income.
(Report and Recommendations on Child Support (1995) (the "Committee Report"), at p. 44.)
85The Committee explained that its recommended approach "is essentially child-centred: the child benefits from the standard of living of the non-custodial parent before the separation/divorce and so should continue to do so after the separation/divorce" (DOJ Report, at p. 12).
86During the debates on Bill C-41, the then Minister of Justice, Allan Rock, reiterated the Committee's justifications. He explained that it is fair to assume that the recipient parent is supporting the child because the recipient parent lives with the child and provides the child with the necessities of life (Canada, House of Commons, Standing Committee on Justice and Legal Affairs, Evidence, No. 54, 2nd Sess., 35th Parl., October 21, 1996, 17:10 to 17:15).
87As these justifications make clear, the formula for calculating the table amounts takes into account the ways in which the recipient parent contributes to the financial needs of the child, as required by s. 26.1(2) of the Divorce Act. The assumption that the recipient parent's contribution to child-related costs is equivalent to the payer parent's contribution is not unreasonable. The recipient parent bears the bulk of the financial obligations that arise from sharing a home with the child and providing for the child's daily needs. These contributions are not expressly accounted for in the formula but are implicitly assumed.
88The parties do not dispute that recipient parents contribute to child-related costs by virtue of living with the children. While some recipient parents may contribute a larger proportion of the costs and others a smaller proportion, based on each recipient's unique financial circumstances, the GIC was authorized to select an approach to calculating child support that does not take into account the recipient parent's specific income. This approach achieves the objective of predictability and consistency while accounting for the recipient parent's contribution to child-related costs.
89For these reasons, I conclude that an interpretation of the GIC's broad authority to establish guidelines "respecting the way in which the amount of an order for child support is to be determined" (s. 26.1(1)(a)) that authorizes the GIC not to take into account the recipient parent's income in calculating the table amounts is reasonable. This interpretation is consistent with both the extremely broad grant of authority in s. 26.1(1) and the constraint in s. 26.1(2).
(3) The GIC Was Authorized To Assume That Parents Spend the Same Linear Percentage of Their Income on Their Children
90Mr. Auer submits that the Child Support Guidelines unreasonably assume that parents spend the same linear percentage of income on their children regardless of the parents' income levels and the ages of the children. He argues that the table amounts fail to account for the fact that parents with higher incomes may spend less than a linear percentage of their income on child-related costs (A.F., at paras. 131-34).
91The table amounts assume that parents spend the same linear percentage of income on their children. The table establishes a fixed monetary amount of support for payer parents whose annual income exceeds a certain threshold (DOJ Report, at p. 6).
92Mr. Auer submits that courts are unlikely to depart from a linear application of the table amounts despite having the discretion to do so (A.F., at para. 139). He asks our Court to consider the actual effect of the Child Support Guidelines to determine whether they are intra vires.
93Under s. 26.1(1)(b) of the Divorce Act, the GIC is authorized to establish guidelines "respecting the circumstances in which discretion may be exercised in the making of an order for child support". The Child Support Guidelines provide courts with discretion to depart from the table amounts in certain circumstances, including when the payer parent's annual income exceeds $150,000 (s. 4) and in the case of undue hardship (s. 10).
94Mr. Auer argues that the Child Support Guidelines fail to reflect the fact that parents spend different percentages of their income on children at different ages. The Child Support Guidelines do not include separate tables for children of different ages. However, the GIC may have had good reasons to adopt a simplified approach and not to differentiate between children of different ages. The table amounts are meant to be applied efficiently, and requiring judges and parties to determine a child's age and then apply a different table amount for each age bracket would complicate the process and undermine the objectives of predictability and consistency.
(4) The GIC Was Authorized Not To Take Into Account Government Child Benefits Paid to the Recipient Parent in Calculating Child Support Awards
95The formula used to calculate the table amounts does not include the federal Canada Child Benefit and the GST/HST rebate for children paid to the recipient parent (DOJ Report, at p. 5; Payne and Payne, at p. 185).
96The Child Support Guidelines represent a move away from a purely needs-based approach towards one that seeks to maximize the amount available to be spent on children while ensuring that payer parents contribute an amount that is proportional to their income. The GIC was not required to include government child benefits in the formula for the table amounts given this move away from a purely needs-based approach.
97Section 26.1(1)(f) of the Divorce Act authorizes the GIC to establish guidelines "respecting the determination of income for the purposes of the application of the guidelines". The GIC elected not to include certain government benefits as income for the purposes of calculating child support. This is a policy choice that fell within the GIC's broad authority under s. 26.1(1).
(5) The GIC Was Authorized Not To Take Into Account the Payer Parent's Direct Spending When That Parent Exercises Less Than 40 Percent of Annual Parenting Time
98The table amounts do not take into account the payer parent's direct spending on the child; they "do not assume that the payor parent pays for the housing, food, or any other expense for the child directly" (DOJ Report, at p. 5). When the payer parent exercises less than 40 percent of annual parenting time, the presumptive table amounts apply and no adjustment is made to account for the payer parent's direct spending on the child.
99Once it is established that a payer parent exercises 40 percent or more of annual parenting time, a court may consider the payer parent's direct spending on the child under s. 9(b). Section 9(b) permits a court to consider "the increased costs of shared custody arrangements" when establishing child support. If a payer parent exercises less than 40 percent of annual parenting time, no such adjustment is permitted.
100Mr. Auer submits that it is unreasonable for the table amounts to assume that payer parents do not spend directly on their children in addition to making support payments. In his view, failing to account for this direct spending results in payer parents bearing a disproportionate share of child-related costs.
101The GIC is authorized under s. 26.1(1) of the Divorce Act to establish guidelines "respecting the way in which the amount of an order for child support is to be determined" and "respecting the circumstances in which discretion may be exercised in the making of an order for child support" (ss. 26.1(1)(a) and (b)). This broad authority encompassed the power to select an approach to calculating child support that does not take into account the payer parent's direct spending when that parent exercises less than 40 percent of annual parenting time.
102I do not mean to suggest that payer parents overcontribute. However, it is important to keep in mind, as counsel for Ms. Auer explained during the hearing, that recipient parents bear many financial obligations as a result of being the primary caregiver. As the DOJ Report explained, the recipient parent bears the overhead costs of maintaining a home for the children (p. 5). These costs are not reflected in the table amounts.
103Furthermore, s. 10(1) of the Child Support Guidelines provides that a court may, on either spouse's application, award an amount of child support that is different from the amount determined under s. 3 if the court finds that the application of those provisions "would result in an amount of child support that is inequitable given the condition, means, needs and other circumstances" of the child or the spouses.
104Interpreting the enabling statute as authorizing the making of guidelines which set the threshold percentage for when a court may consider the increased costs of shared parenting time arrangements falls within a reasonable interpretation of the GIC's broad authority under s. 26.1(1) of the Divorce Act. In reaching this conclusion, I am not assessing the wisdom or merits of this threshold; I am simply concluding that it falls within the scope of the GIC's broad authority.
(6) The GIC Was Authorized To Establish a Separate Category of Special or Extraordinary Expenses
105Section 3(1) of the Child Support Guidelines sets out the presumptive rule regarding child support awards: unless otherwise provided, the amount of a child support order for children under the age of majority is to be determined by reference to the applicable table. Section 7 of the Child Support Guidelines provides for an additional award for "special or extraordinary expenses". These expenses include childcare expenses, health insurance premiums and medical and dental expenses (s. 7(1)). They are intended to cover expenses that are not otherwise accounted for in the table amounts.
106Mr. Auer submits that adding s. 7 expenses to the table amounts in accordance with the presumptive rule results in the "double counting" of child expenses for which the payer parent is responsible. He argues that since the table amounts already account for such expenses, adding s. 7 expenses on top of the table amounts requires the payer parent to pay twice for the same expenses.
107I reject Mr. Auer's submission.
108Mr. Auer's submission is rooted in a purely needs-based approach to child support. The underlying theory of a purely needs-based regime is that "both parents should provide enough support to the child to meet the child's assessed needs" (D.B.S., at para. 54). Under a purely needs-based approach, double counting would be problematic because any increase in child support amounts would increase the total amount paid by the parents above what is needed to meet the child's assessed needs.
109However, the Child Support Guidelines have eschewed a purely needs-based approach to child support (D.B.S., at para. 54). The Child Support Guidelines seek to ensure that the child benefits from the standard of living of both parents. As the Court in D.B.S. explained, the concept of "cost of raising children" is elusive:
The concept of "cost of raising children" is an illusory theoretical construct. Spending on children is not fixed; it changes as the income of either parent changes. Families with higher incomes spend more on their children than families with lower incomes. Thus, a purely needs-based approach is not consistent with the principles underlying the Child Support Guidelines.
(D.B.S., at para. 54.)
110In short, the Child Support Guidelines begin with the payer parent's income and determine the amount of support that that parent must pay to ensure that the child continues to benefit from the payer parent's income. Section 7 expenses are on top of this and allow a court to require both parents to contribute to expenses that are necessary in relation to the child's best interests and reasonable in relation to the means of the spouses.
111The parent applying for s. 7 expenses must demonstrate that the expenses are necessary in relation to the child's best interests and are reasonable in relation to the means of the spouses and the child. The court then determines the amount that each parent must pay based on their respective incomes and in light of the presumptive table amounts. The table amounts and s. 7 expenses are designed to complement each other, not to double count.
112The GIC's broad authority under s. 26.1(1) of the Divorce Act to establish guidelines "respecting the way in which the amount of an order for child support is to be determined" clearly entitled the GIC to establish a separate category of special or extraordinary expenses under s. 7, in addition to the presumptive table amounts.
113Thus, contrary to Mr. Auer's assertion, it is not problematic if there is some overlap between the expenses contemplated in the table amounts and "special or extraordinary" expenses under s. 7. Such overlap would not automatically render the Child Support Guidelines ultra vires.
VII. Conclusion
114The reasonableness standard under the Vavilov framework presumptively applies when reviewing the vires of subordinate legislation. Katz Group continues to provide helpful guidance. However, for the reasons set out above, the "irrelevant", "extraneous" or "completely unrelated" threshold in Katz Group is no longer the applicable standard for finding subordinate legislation to be inconsistent with the purpose of its enabling statute.
115The Child Support Guidelines fall reasonably within the GIC's scope of authority under s. 26.1 of the Divorce Act, having regard to the relevant constraints. Under s. 26.1(1), the GIC is granted extremely broad authority to establish guidelines respecting child support. Section 26.1(2) constrains this authority by requiring that the guidelines be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute. The Child Support Guidelines respect this constraint.
116The GIC was entitled to choose an approach to calculating child support that (1) does not take into account the recipient parent's income; (2) assumes that parents spend the same linear percentage of income on their children regardless of the parents' levels of income and the children's ages; (3) does not take into account government child benefits paid to recipient parents; (4) does not take into account direct spending on the child by the payer parent when that parent exercises less than 40 percent of annual parenting time; and (5) risks double counting certain special or extraordinary expenses. Each of these decisions fell squarely within the scope of the authority delegated to the GIC under the Divorce Act.
117The appeal is dismissed with costs to the respondent Aysel Igorevna Auer.
Appeal dismissed with costs.
Solicitors
Solicitors for the appellant: Jensen Shawa Solomon Duguid Hawkes, Calgary; Ronald Robinson Barrister & Solicitor, Calgary; Paul Daly Law Professional Corporation, Ottawa.
Solicitors for the respondent Aysel Igorevna Auer: Huizinga Di Toppa Coles & Layton, Edmonton.
Solicitor for the respondent the Attorney General of Canada: Attorney General of Canada, Department of Justice, National Litigation Sector — Ontario Regional Office, Toronto; Attorney General of Canada, Department of Justice, National Litigation Sector — Edmonton Regional Office, Edmonton.
Solicitor for the intervener the Attorney General of Ontario: Ministry of the Attorney General, Crown Law Office — Civil, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Ministère de la Justice du Québec, Québec.
Solicitor for the intervener the Attorney General of British Columbia: Ministry of Attorney General of British Columbia, Legal Services Branch, Vancouver.
Solicitor for the intervener the Attorney General of Saskatchewan: Saskatchewan Ministry of Justice and Attorney General, Regina.
Solicitors for the intervener the Trial Lawyers Association of British Columbia: Hunter Litigation Chambers, Vancouver.
Solicitors for the interveners the HIV & AIDS Legal Clinic Ontario and the Health Justice Program: Paliare Roland Rosenberg Rothstein, Toronto.
Solicitors for the intervener the Canadian Council for Refugees: Jamie Liew, Ottawa; Lehal Law Corporation, Delta (B.C.).
Solicitor for the intervener the City of Calgary: City of Calgary, Law/Legal Services and Security, Calgary.
Solicitors for the interveners the Chicken Farmers of Canada, the Egg Farmers of Canada, the Turkey Farmers of Canada and the Canadian Hatching Egg Producers: Conway Baxter Wilson, Ottawa.
Solicitors for the intervener the National Association of Pharmacy Regulatory Authorities: Shores Jardine, Edmonton.
Solicitors for the intervener Association québécoise des avocats et avocates en droit de l'immigration: Hasa Avocats Inc., Montréal.
Solicitor for the intervener the Workers' Compensation Board of British Columbia: Workers' Compensation Board of British Columbia, Richmond.
Solicitors for the intervener the Canadian Association of Refugee Lawyers: Refugee Law Office, Toronto; Landings, Toronto.
Solicitors for the intervener the Advocates for the Rule of Law: Henein Hutchison Robitaille, Toronto.
Solicitor for the intervener the Ecojustice Canada Society: Ecojustice Canada Society, Toronto.
