‘Loaded Issue’: A Saskatchewan Father’s Decade-Long Legal Fight to Overturn Child Support Guidelines

The Supreme Court of Canada in Ottawa, in a file photo. (The Canadian Press/Adrian Wyld)

A Saskatchewan father is continuing with his long-running effort to have the Supreme Court of Canada overturn the child support guidelines under the Divorce Act, saying he believes they contradict the principles of the act.

Roland Auer, a professor of pathology and laboratory medicine at the University of Saskatchewan, launched the challenge to the Federal Child Support Guidelines about a decade ago. He has children with his first spouse, a child with his second spouse, and a biological child and adopted child with his current spouse.

Auer’s lead lawyer on the challenge, Laura Warner, told The Epoch Times that the children Auer has with his first and current spouses have been disadvantaged because of specifics in the guidelines.

“They just had to bear economic hardship because so much of his income was [going to] his one child with his second ex-spouse. And the evidence there is just that what’s left over for them is disproportionately less. So that’s at the heart of this whole challenge,” Warner said.

“Kids from subsequent and prior families can often end up in these desperate situations, and his is a prime example of that. So it’s been hard on him and hard on them.”

The Federal Child Support Guidelines, which came into effect in 1997, have four objectives. The first is “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,” and the fourth is “to ensure consistent treatment of spouses and children who are in similar circumstances.”

The legal challenge argues that the guidelines defy the act’s objectives and should be declared ultra vires (of no effect). The Divorce Act has been amended five times since the legal challenge was launched, but none of the changes have addressed the issues in question.

Warner says it’s an uphill battle to bring about change.

“It’s a loaded, polarizing issue, and I don’t think that any government relishes the idea of being told that this particular regulation is invalid and you have to fix it. So I do think we’re going to face every argument that they have to avoid that being the ultimate outcome. Our real fight here is really pushing to get the court to look at these things in a much more meaningful way than it has done so far,” Warner said.

“The courts have the inherent power and authority and responsibility to make sure that in any situation like that, the person who’s been given the power [to regulate] has acted within the four corners of what was delegated to them. Our argument here is the regulations can’t be squared with the limitations that are put on them in the Divorce Act.”

A Long Odyssey

Warner characterized the legal challenge, which began in 2013, as “a very serious odyssey … for a lot of years.”

“The [federal] government responded by saying this shouldn’t be in the Federal Court, it should be in the provincial courts,” she said.

“We went to the Federal Court, Federal Court of Appeal, and the Supreme Court of Canada, just to find out that they wanted us to do this in the provincial courts.”

That Supreme Court decision was made in 2015, only to face further quirky delays. It took until December 2018 for the Court of Appeal of Alberta to determine the Department of Justice’s status as a respondent. Finally, the case itself was heard in December 2020. In May 2021, Justice Rothwell of the Court of Queen’s Bench of Alberta ruled that he could not rightly overturn the guidelines approved by the executive branch of the government, also known as the Governor in Council (GIC).

“The majority of the issues raised by Mr. Auer fall outside the scope of a vires review as they seek to impugn the GIC’s policy decisions and ignore the broad discretion that the GIC enjoys when enacting regulations pursuant to a broad statutory grant,” Rothwell wrote.

In November 2022, the Court of Appeal of Alberta reached a similar conclusion, leaving an appeal to the Supreme Court of Canada as the final recourse for the challenge.

Warner says the deadline for filing their leave to appeal application to the Supreme Court is Jan. 20. “The other side will have 60 days to respond, and then we’ll have 10 days to reply,” she said. “After that, it’s a bit of a guess how long the Supreme Court will take to decide whether it wants to hear the case.”

The Department of Justice told The Epoch Times it will be “monitoring the impact of the decision on the interpretation” of the guidelines.

“The Federal Child Support Guidelines are an important access to justice tool that help to establish a fair standard of support for children so that they continue to benefit from both parents’ incomes after a separation or divorce. They also reduce conflict and tension between parents by making the calculation of child support more objective,” a spokesperson said in an email.

The Economic Analysis

A report submitted to the court by economics professor Christopher Sarlo of Nipissing University laid out numerous ways that the guidelines favour the custodial parent (CP) over the non-custodial parent (NCP). The website SupportTheChallenge.ca, which documents the legal action, summarizes the issues as follows:

• the income of the CP is ignored;
• the differing costs of raising children at different ages and in different locations is ignored;
• they assume the CP incurs all the costs of the children and the NCP has no costs;
• most of the tax credits and government benefits received by the CP are ignored;
• any responsibilities of the NCP to maintain children from prior or subsequent relationships are ignored; and
• it is assumed parents spend the same percentage of their after-tax income on their children at higher income levels as they do at lower-income levels, when it is obvious it is a decreasing percentage.

Sarlo’s report also argues that the formula used to estimate the financial cost of each child is flawed and disproportionately burdens the non-custodial parent in nearly every family circumstance and income level. He argues that Section 7 expenses for children’s activities, such as music lessons, dance, and sports, should not be levied as an additional burden.

The second and third objectives of the Federal Child Support Guidelines are “to reduce conflict and tension between spouses by making the calculation of child support orders more objective” and “ 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.”

Sarlo told The Epoch Times that his divorce experience showed that the guidelines are a key component of a family law system that does the opposite. He said that in his case, adoption of the guidelines facilitated successful legal action by his ex-wife to throw out the parenting and payment agreement that was signed and agreed to under the supervision of lawyers from both sides. He said a “difficult” process ensued.

“I remember when I had to go through that. There were men lined up on a certain day of the week in the courthouse like cattle, and they had to wait sometimes for a full morning before their case was heard. They had to write affidavits and you get into all this back and forth, which is already difficult,” he said.

“If family law lawyers were to design a system which would increase their bank accounts, that would be the system. And it’s not designed for families with children that, unfortunately, have divorced. It’s designed with lawyers and courts in mind that keeps them very busy—lots of billable hours, and so on.”

“It’s unfair to both parties in that sense,“ he added, noting that there’s also ”an imbalance“ because most of those who ”take these matters to court happen to be women, just like, statistically, most of the people that initiate a divorce are women.”

Quebec Adopts Own Guidelines

Quebec has opted out of the federal plan and adopted its own guidelines, ones that Warner submitted were more in accord with fairness and the objectives of the Divorce Act. She said that if the Supreme Court refuses to intervene, advocates for the cause will have to resort to political solutions, such as lobbying provinces to opt out of the guidelines and make better ones.

Sarlo said a solution of some kind is necessary because the status quo is unfair.

“There are a lot of people that would say, ‘Well, that’s just sour grapes.’ They don’t appreciate how unfair it is until they actually read a case and say, ‘Oh my God, I didn’t realize that that could happen to somebody,’” he said.

“It is important—it’s one of those social issues that’s crying out to be to be rectified.”

Editor’s note: This article has been updated to include comment from the Department of Justice.