L'Action des nouvelles conjointes du Québec v. Canada

L'Action des nouvelles conjointes du Québec v. Canada
Court (s) Database
Federal Court Decisions
Date
2004-06-01
Neutral citation
2004 FC 797
File numbers
T-1473-03, T-1474-03
Notes
Digest
Decision Content
Date: 20040601
Docket: T-1473-03
Citation: 2004 FC 797
Ottawa, Ontario, June 1, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
L'ACTION DES NOUVELLES CONJOINTES DU QUÉBEC
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
- and -
Docket: T-1474-03
BETWEEN:
L'APRÈS-RUPTURE
FATHERS ARE CAPABLE TOO: PARENTING ASSOCIATION
LEGAL KIDS
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion appealing the Order of the Prothonotary dated November 18, 2003, striking the statement of claim in both T-1473-03 and T-1474-03.
Preliminary Matter
[2] The plaintiffs have brought a motion that the parties in both cases should be joined in a common action.
[3] After discussion, given that the plaintiffs' record was not complete, given that counsel for the defendant opposed the motion but would not file his record until the plaintiffs' record was completed, and given the particular circumstances of this case, the parties have agreed to adjourn this motion sine die.
FACTS
The Parties
Plaintiffs
(T-1473-03)
[4] L'Action des nouvelles conjointes du Québec is a corporation registered under the laws of Quebec. Its objective is to rally and give assistance to couples formed by previously married spouses who have been negatively impacted by iniquities within the judicial system.
(T-1474-03)
[5] L'Après-Rupture is a corporation registered under the laws of Quebec. Its mission is to defend and promote the rights of children in maintaining strong relationships with their biological and extended family and to assist fathers and parents in the promotion of fatherhood and the family. The group is also concerned with developing a social conscience of the negative impact of the rupture of the conventional family.
[6] Fathers are Capable Too: Parenting Association, also known as F.A.C.T., is a non-profit company registered under the laws of Ontario. Its objective is to provide support and counselling to non-custodial parents involved in the divorce or separation process, and to promote shared parenting.
[7] Legal Kids is a non-profit company registered under the laws of Alberta, whose objective is to ensure that children's rights are respected and protected during the divorce of their parents.
The defendant
[8] Since the plaintiffs seek a declaration of invalidity against an Act of Parliament, the defendant is Her Majesty the Queen in Right of Canada.
Statement of Claim
[9] The plaintiff in action T-1473-03 sought a declaration that section 26.1 of the Divorce Act, R.S. 1985, c. 3 (2nd Supp.) (Act), and the Guidelines adopted thereunder, were inconsistent with sections 7, 15 and 28 of the Canadian Charter of Human Rights, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11, (Charter) and thus of no force and effect to the extent of that inconsistency. The plaintiff also sought a declaration that section 26.1 and the Guidelines were ultra vires the Parliament of Canada, since they deal with Property and Civil Rights, a provincial head of jurisdiction under section 92(13) of the Constitution Act, 1867. Finally, the plaintiff sought a number of other declarations, generally to the effect that the common law, the Canadian Bill of Rights, 1960, c.44 (Bill of Rights) and the Charter require another approach than that of the Guidelines to determining the amounts that should be paid in child support. For example, the parent receiving support on behalf of the child should be required to account for all expenditures made from the amount received, there should be joint spousal decision-making regarding all expenditures of child support awarded under the Act, or a parent should be precluded from bringing an action for child support on behalf of a legally competent child who has reached the age of majority.
[10] In action T-1474-03, the plaintiffs sought a declaration that the test set forth in subsections 16(1), 16(2), 16(8) and 16(10) of the Act was inconsistent with subsections 2(b) and 2(d) and sections 7, 12, 15 and 28 of the Charter as well as contrary to subsections 1(a) and 1(b) of the Bill of Rights. Essentially, the impugned subsections under section 16 of the Act, by enshrining the "best interest of the child"test and by ignoring parents' right to freedom from state interference, deny parents their legal rights to a relationship with their children, to property and to privacy under the Charter, the Bill of Rights and the common law. The test, according to the plaintiffs, is inherently biased against fathers. Moreover, it interferes with the right to privacy and against state interference which is granted to intact families but is lost to families undergoing the divorce process.
[11] The evidence in both cases shows that sole custody is awarded by courts to mothers in the vast majority of cases; since the non-custodial parent must pay child support to the custodial parent under the Guidelines (unless financial circumstances indicate the contrary), men find themselves paying child support in a much higher proportion than women.
[12] According to the plaintiffs, the calculation of child support is based on erroneous premises, and amounts to an unfair transfer of wealth, often to the benefit of the ex-spouse rather than the child for which support is paid. The plaintiffs also contend that the bias of the system, which favours awarding sole custody to the mother rather than joint custody, deprives them of a meaningful relationship with their children.
[13] This is a very brief summary of the arguments of the plaintiffs, in both cases, but I believe it reflects the essential elements of their respective statements of claim: Sections 16 and 26.1 of the Act, both because of their language and of their implementation, discriminate against men and deprive them of their equality, privacy and property rights under the Charter, the common law and the Bill of Rights, as well as their right to freedom of association and expression under the Charter. Moreover, by determining how private contracts should be established (i.e. the arrangements between parents post-divorce) and by imposing payments on fathers, the Act exceeds the authority of Parliament and enters the realm of Property and Civil Rights, which is under provincial jurisdiction.
Motion of the defendant
[14] The defendant brought a motion to have both cases dismissed; the motion was heard on October 6, 2003. The defendant stated the following grounds for dismissing the case:
1) The plaintiffs do not have standing in the actions;
2) The Federal Court is not the appropriate forum to adjudicate the matter; and
3) The plaintiffs have shown no reasonable cause of action.
Decision of Prothonotary Morneau
[15] Prothonotary Morneau allowed the motion, basing his decision mainly on the Supreme Court of Canada decision Canadian Council of Churches v. Canada (M.E.I.), [1992] 1 S.C.R. 236 (Canadian Council of Churches), and found that the plaintiffs did not have standing.
[16] In Canadian Council of Churches, the Supreme Court stated, as part of the test to determine whether a public interest group may have standing as plaintiff before a court, that there must be no other reasonable and effective way to bring the issue before the court. The Supreme Court emphasized in that decision that judicial economy, and the need to ensure access to the courts by individual plaintiffs, severely restrain the ability for groups representing diverse interests to come to the court to have issues decided. This restriction, in the Supreme Court's opinion, should remain. Thus, it is preferable for constitutional challenges to be raised by parties before the courts, since this is a better allocation of judicial time and resources.
[17] Prothonotary Morneau found that, on a balance of probabilities, parties to divorce proceedings before the court do have the opportunity to make submissions on the Charter, and in fact, have already done so on a number of occasions. Thus, according to the Prothonotary's decision, it is not necessary for the plaintiffs to come before this Court to argue the unconstitutionality of sections of the Divorce Act, since there are other reasonable and effective means of raising these issues in individual cases.
[18] Given the fact that he had ruled that the plaintiffs did not have standing in the action, Prothonotary Morneau did not address the other two grounds for striking the claim that had been raised by the defendant, namely the appropriate forum for such an action and whether the plaintiffs have a reasonable cause of action.
ISSUES
[19] The plaintiffs have appealed the decision of Prothonotary Morneau, as being unfounded in law; according to the plaintiffs, there is no basis in law on which the statement of claim may be struck. The plaintiffs maintain that they do have standing, that they do have a reasonable cause of action, and that the Federal Court is the proper forum for their action.
[20] Both parties have agreed that this Court is hearing the matter de novo. This is consistent with Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), where the Court stated: "Where [discretionary orders of the prothonotary] raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo."
[21] Thus, the Court is asked to consider the issue raised by the plaintiffs, that there is no basis in law for striking the statement of claim, as well as the issues raised by the defendant in the motion that was ruled upon by Prothonotary Morneau. The issues in the instant case can be stated as follows:
1) Is there a basis in law for striking the statement of claim?
2) Do the plaintiffs have standing in the actions?
3) Is the Federal Court the appropriate forum to adjudicate the matter?
4) Do the plaintiffs have a reasonable cause of action?
LEGISLATION
[22] For greater ease of reading, the legislation referred to is found in the appendix.
ANALYSIS
1) Is there a basis in law for striking the statement of claim?
[23] The plaintiffs argue that there are no grounds under either Rule 208 or Rule 221 to strike the statement of claim. However, in Canadian Council of Churches, supra, the originating motion which lead to the Supreme Court decision to strike the statement of claim for want of standing was based on Rule 419 which has become Rule 221 in the Federal Court Rules, 1998. Our Court has since used the Supreme Court decision as a way of interpreting Rule 221. In Munzel v. Canada, [1998] F.C.J. No. 1231 (T.D.), Prothonotary Hargrave writes at paragraph 15:
While I have not used rule 221 of the Federal Court Rules to strike out the action as, per se, disclosing no reasonable cause of action, as scandalous, frivolous or vexatious, or as an abuse, rule 221 (formerly rule 419) may be utilized to strike out pleadings where the plaintiff has no standing: see Canadian Council of Churches v. Canada (1989), 27 F.T.R. 129 (T.D.); (1990), 106 N.R. 61 (F.C.A.); and [1992] 1 S.C.R. 236.
Thus I find that there is a basis in law for striking the statement of claim.
2) Do the plaintiffs have standing in the actions?
[24] Before the adoption of the Charter, the issue of public interest standing was dealt with extensively in a trilogy from the Supreme Court of Canada: Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575.
[25] Prothonotary Hargrave, writing in Daniels v. Canada (Minister of Indian Affairs and Northern Development), [2002] 4 F.C. 550 (T.D.), summarized thus the test that was developed through those three cases:
¶ 11 The Supreme Court of Canada has considered the issue of standing in a trilogy of cases, Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265 and Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575. In the latter Mr. Justice Martland, speaking for the majority of the Supreme Court, summarized the principles, as to standing, arising out of Thorson and of McNeil (at page 598):
I interpret these cases as deciding that to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the Court.
In Borowski, the plaintiff, as an individual taxpayer, sought to obtain a declaration that certain provisions of the Criminal Code [R.S.C. 1970, c. C-34] were inoperative. To do so he had to meet the conditions, set out by Mr. Justice Martland above, as to standing: first, that there was a serious issue; second, that he was directly affected or genuinely interested as a citizen; and third, that there was no other reasonable and effective way to bring the issue before a court.
[26] After the adoption of the Charter in 1982, the test developed in the trilogy was confirmed in the leading case on the issue of standing, Canadian Council of Churches, supra. In that case, the Canadian Council of Churches sought to have the new immigration provisions invalidated on the basis that they were unconstitutional. The defendant Crown sought to have the motion struck, because of lack of standing. The motion was dismissed at trial, and granted partly at the Federal Court of Appeal. The Supreme Court of Canada struck out the claim entirely, for want of standing.
[27] The first two parts of the test were met, according to the Supreme Court of Canada: there was a serious issue to be tried, and the plaintiff had a genuine interest in the matter. However, the action failed on the third count, because there was another reasonable and effective way to bring the issue before the Court, through individual refugee claims. The Federal Court of Appeal had taken judicial notice of the fact that appeals based on constitutional grounds were being made to the Court.
[28] The Supreme Court in Canadian Council of Churches, supra, stressed the fact that although public interest standing may be granted where appropriate, the courts must be careful to balance access to the courts with preserving judicial resources. Thus the court will be more than reluctant to grant standing where the matter could be pursued in the context of private litigation. At paragraphs 35 and 36, Justice Cory, writing on behalf of the Court, stated:
However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a [sic] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded.
[29] The purpose of granting status is explicitly stated: to prevent the immunization of legislation or public acts from a court challenge. Therefore, if it can be shown that the impugned legislation may be or has in fact been challenged through private litigation, a group seeking to attack in court will not be granted standing, because to do so would overextend the resources of the courts.
[30] In their memorandum, the plaintiffs argue that it would be unfair to expect of litigants embroiled in painful divorce proceedings to burden themselves further with constitutional arguments. The plaintiffs cite Justice Cullen in Friends of the Island Inc. v. Canada (Minister of Public Works), [1993] F.C.J. No. 781, to argue that the possibility of private litigation should not be merely theoretical, but rather that there should be a "reasonable degree of probability" (paragraph 214) before standing is refused on the basis that other means exist to bring a constitutional issue before the court.
[31] In that case, Justice Cullen ruled that the applicant organization did have standing to raise the issue of the constitutionality of the fixed link between Canada and Prince-Edward-Island, because no other litigant was likely to raise the issue, which was a valid one.
[32] The plaintiffs give a long list of cases where groups are given standing to make representations to the court. I will briefly review some of those cases.
Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607
[33] Mr. Finlay sought to have the federal-provincial arrangements under the Canada Assistance Program declared invalid, because he believed they were misapplied by the province. He himself was a beneficiary, and was being penalized by the repayment of a municipal debt. In this case, Mr. Finlay sought to speak on behalf of other recipients, but he himself was also directly concerned.
Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.J. No. 6, 2004 SCC 4
[34] In that case, the Canadian Foundation for Children, Youth and the Law sought a declaratory relief against the provision in the Criminal Code which provides a defence of reasonable force for parents and guardians for administering physical discipline. The issue of standing was not raised. As the defendant in the instant case noted in his memorandum, there was no other reasonable or probable way to raise the issue, since the people who could use the defence would be unlikely to challenge it, and children do not have standing before the courts.
EGALE Canada Inc. v. Canada (Attorney General), [2003] B.C.J. No. 994
[35] Again, the issue of standing was not raised. In this case, EGALE was one of several appellants; all others were gays and lesbians who wanted to get married. A single issue was identified: whether the common law bar to homosexual marriage was constitutional under section 15 of the Charter.
Daniels v. Canada, (Minister of Indian Affairs and Northern Development), [2002] 4 F.C. 550 (T.D.)
[36] Metis and Non-Status Indians were seeking a declaration of rights from the government. The defendant Minister sought a motion to strike on the basis that they had no standing. Prothonotary Hargrave found that there was a serious issue, that they had a genuine interest, and that there was no other reasonable way for them to assert their rights:
¶ 24 Finally, there is the issue of whether there is some other reasonable and effective manner in which the plaintiffs' issue may be brought before the Court. Clearly, neither the federal Crown nor the provincial Crown are the least bit interested in negotiating with the Métis and with non-status Indians who, as a result, are trapped in a jurisdictional vacuum between Canada and the provinces. Therefore, even though "the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith", as Chief Justice Lamer pointed out in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, at paragraph 186, the issues in this proceeding are highly unlikely to come before the Court in the context of a suit over a specific right.
Environmental Resource Centre v. Canada (Minister of the Environment), [2001] F.C.J. No. 1937 (T.D.)
[37] An environmental group was acting to protect fish habitat. The issue of standing was not raised. In such a case, it would appear rather obvious that unless an environmental group raises an issue, no one else will speak on behalf of the environment.
Professional Institute of the Public Service of Canada v. Canada (Customs and Revenue Agency), [2001] F.C.J. No. 104 (T.D.)
[38] Standing was not at issue. The Union was acting on behalf of its members as the duly certified bargaining agent.
Human Rights Institute of Canada v. Canada (Minister of Public Works and Government Services), [2000] 1 F.C. 475 (T.D.)
[39] On an issue of expropriation of public lands, the Court ruled that the applicants had standing, since no private litigation could be expected in the case. The Court quoted [at page 492] Cory J. in Canadian Council of Churches (pp.252-253) :
The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant.
Harris v. Canada , [2000] 4 F.C. 37 (C.A.)
[40] Mr. Harris sought declaratory relief, alleging maladministration of the Income Tax Act by Revenue Canada, for advance rulings given by Revenue Canada allowing assets to leave Canada untaxed. The Court ruled that Mr. Harris did have standing, as an interested taxpayer, since the issue was a serious one and given that it was unlikely the beneficiary of the advance ruling would challenge it in Court.
[41] The rule, as stated by the Supreme Court of Canada and interpreted by lower courts, seems to be that public interest standing will be granted where no individual litigant can be expected to go forward with a constitutional challenge. Personal hardship, as can be seen from Canadian Council of Churches, supra, is not a criteria which the Supreme Court will take into account in this assessment of standing. At page 254, Justice Cory states, speaking of the refugees:
... each one of them has standing to initiate a constitutional challenge to secure his or her own rights under the Charter. The applicant Council recognizes that such actions could be brought but argues that the disadvantages which refugees face as a group preclude their effective use of access to the court. I cannot accept that submission.
[42] The fact that the Federal Court of Appeal had taken judicial notice of challenges by refugee claimants was a factor in Canadian Council of Churches, supra. In his decision, Prothonotary Morneau stated that on a balance of probabilities, it could be expected that private litigants in divorce proceedings would raise constitutional challenges if warranted. He cited a few decisions from the Supreme Court to bolster this assertion. I concur. A quick review of cases in provincial superior and appeal courts confirms that constitutional issues are indeed raised in the course of divorce proceedings. Here is but a partial list:
Whalley v. Barsalou, [1990] N.B.J. No. 1148 (N.B.C.Q.B.)
Koch v. Koch, [1985] S.J. No. 760 (S.C.Q.B.)
Thurber v. Thurber, [2002] A.J. No. 992 (A.C.Q.B.)
G.B. c. M.B.,Droit de la famille - 955 (SOQUIJ), [1991] A.Q. no 202 (C.A.Q.)
Qually v. Qually, [1988] S.J. No. 736 (Sask. C.A.)
Kelman v. Stibor, [1998] O.J. No. 2999 (O.C.J.)
Michie v. Michie, [1997] S.J. No. 668 (S.C.Q.B.)
Souliere v. Leclair, [1998] O.J. No. 1393 (O.C.J. G.D.)
Massingham-Pearce v. Konkolus, [1995] A.J. No. 404 (A.C.Q.B.)
Dirk v. Dirk, [2002] S.J. No. 437 (S.C.Q.B.)
Keyes v. Keyes, [1995] M.J. No. 441 (M.C.A.)
Hockey v. Hockey, [1989] O.J. No. 1036 (O.H.C.J.(Div.Ct.))
[43] Thus, although it may be that serious issues are at stake and that the groups do have a genuine interest in the matter, I find that the plaintiffs have not satisfied the third part of the test, that there exists no reasonable and effective way to raise the issues before the courts other than by way of the plaintiffs' action. On the contrary, I believe that those issues can be raised and have been raised to a certain extent before the courts.
[44] While I sympathize with the plaintiffs' argument that arguing constitutional matters is an additional burden at a time the litigants are facing emotional turmoil and are seeking what is best for their children, I have not been convinced, on the balance of probabilities, that such a constitutional challenge can never occur. The fact that very few parents would raise some of the issues suggested by the plaintiffs because of the lengthy process and the possibility to have a decision too late to be appropriate is, as far as I am concerned, pure speculation. Cases have come before the courts and decisions have been made by the courts; both parties provided a number of cases to that effect.
[45] I thus find that the plaintiffs do not have standing in the actions.
3) Is the Federal Court the appropriate forum to adjudicate the matter?
[46] The Federal Court is not the appropriate forum to challenge provisions of the Divorce Act, for two main reasons: First, Parliament has granted jurisdiction on divorce to provincial superior courts, which therefore have a great deal more experience than the Federal Court in hearing cases under the Act and applying the law. Secondly, according to Reza v. Canada, [1994] 2 S.C.R. 394, even if there is concurrent jurisdiction in a matter, it is preferable for the Court mandated by the regulatory scheme of the Act to hear matters under that Act. It could be argued that the "court of competent jurisdiction", terminology used in both the Charter section 24 and the Divorce Act section 16, is more likely the superior court of a province rather than the Federal Court.
[47] The Federal Court is given a very narrow mandate by the Divorce Act. In the unlikely event that a divorce action would be started on the same day in two different provinces, and if after thirty days one or the other party has not withdrawn his or her action, the Federal Court has jurisdiction to hear the divorce case. This occurrence is extremely rare (one case found in Quick Law, Williamson v. Williamson, [1977] 1 F.C. 38). The plaintiffs argue that the Federal Court has jurisdiction to hear challenges of federal legislation. This is undoubtedly the case, but a court challenge cannot be severed of its subject matter.
[48] In Reza, supra, the plaintiff sought a remedy before the Ontario courts after losing his case under the Immigration Act before the Federal Court. The Supreme Court of Canada ruled that the motions judge had been right to decline jurisdiction over the matter for the Ontario court. Although the Ontario court did have concurrent jurisdiction to protect Charter rights, it was not in the interest of justice to allow plaintiffs to leave the jurisdiction of the Federal Court to proceed in another court, when the whole scheme of the Act had been set up to give jurisdiction to, and thus concentrate expertise in, the Federal Court. In the instant case, the same reasoning applies, albeit in reverse. The Federal Court has little expertise in divorce matters, whereas all the superior courts, because of the jurisdiction granted by the Act, have in-depth knowledge and experience of divorce and all ancillary matters. This is clearly a case where the forum conveniens is the superior court of the provinces, not the Federal Court of Canada.
4) Do the plaintiffs have a reasonable cause of action?
[49] In Canadian Council of Churches, supra, Justice Cory refers to Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, to state that the issues of standing and reasonable cause of action are often closely related. The following quote is from Finlay at paragraph 38:
The issues of standing and reasonable cause of action are obviously closely related, and as acknowledged by counsel for the appellants, tend in a case such as this to merge. Indeed, I question whether there is a true issue of reasonable cause of action distinguishable, as an alternative issue, from that of standing.
I believe the instant case provides a good example of this proposition.
[50] The defendant raised the point that as a corporation under the laws of Quebec, the plaintiff in T-1473-03, L'Action des nouvelles conjointes du Québec, did not have standing to challenge Federal Guidelines that do not apply in Quebec. Under subsection 2(1) of the Act, it is possible for a provincial government to adopt guidelines for child support, which was done, in the case of Quebec, in 1997 (see appendix). Thus, the plaintiff has no standing, since it is not covered by the Federal Guidelines, nor any cause of action, since the Federal Guidelines are not applicable to Quebec.
[51] The plaintiffs sought to convince me that by joining the two actions, this problem would be overcome, and that L'Action des nouvelles conjointes would thus be entitled to challenge the deficiencies of a federal regulation. The argument fails to convince me, for it is clear in their pleadings that the plaintiffs did not take into account the reality of Guidelines issued by the Province of Quebec. Because of that fact, there is no cause of action for the plaintiff in file T-1473-03.
[52] Further, there are several reasons why I do not believe the plaintiffs have a reasonable cause of action:
1) Some of the issues raised have already been settled
[53] The plaintiffs raise issues that have already been settled by the law, notably the authority of Parliament to legislate on all matters related to divorce, a federal head of jurisdiction under subsection 91(26) of the Constitution Act, 1867. In fact, in Zacks v. Zacks, [1973] S.C.R. 891, the Supreme Court did address the question:
I will deal now with the first question. Section 91(26) of the British North America Act gives to the Parliament of Canada authority to legislate on the matters of "Marriage and Divorce". Section 92(13) of that Act gives to a Provincial Legislature authority to legislate on the matters of "Property and Civil Rights in the Province". Alimony, maintenance and the custody of children are not specifically mentioned in either s. 91 or s. 92. The question is as to whether these subjects, which, in themselves, can be considered as civil rights, may be the subject of legislation by the Parliament of Canada, when dealing with the consequences of a divorce, as being inseparable from its jurisdiction to pass laws governing the change of status resulting from a dissolution of marriage.
This question has already been substantially answered in the reasons for judgment of this Court, delivered by Ritchie J., in Jackson v. Jackson [1973] S.C.R. 205] when he said, at p. 211:
... I am satisfied that the power to grant an order for the maintenance of the children of the marriage is necessarily ancillary to jurisdiction in divorce and that the Parliament of Canada was therefore acting within the legislative competency conferred upon it by the British North America Act, 1867, s. 91(26) in legislating to this end.
While this statement deals with the matter of maintenance under s. 11 of the Divorce Act, hereinafter referred to as "the Act", the principle stated applies equally to the matters of custody, care and upbringing of children of the marriage, under s. 11(1)c), to the provisions of s. 10, dealing with interim orders, and to those of s. 12, which authorize the ordering of payments directed under s. 10 or s. 11, to be made to a trustee or administrator, and the imposition of terms, conditions and restrictions in an order made under either of those sections.
[54] The plaintiffs submit that the Divorce Act, and more specifically provisions under section 16 and the test pertaining to the best interest of the child, are contrary to sections 2 and 15 of the Charter. The Supreme Court of Canada, in Young v. Young, [1993] 4 S.C.R. 3, has already concluded that subsections 16(8) (and 17(5)) of the Divorce Act do not violate subsections 2(a), (b), (d) or 15(1) of the Charter.
2) The Supreme Court has often emphasized the importance of specific fact situations, both in the case of Charter challenges and in the case of divorce proceedings.
[55] In a unanimous decision, MacKay v. Manitoba, [1989] 2 S.C.R. 357, the Supreme Court emphasized the importance of fact when deciding a challenge based on the Charter:
¶ 9 Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
[56] Moreover, I do not believe that a general declaratory relief in such a case would be a satisfactory solution to resolve any problems which may arise because of the operation of the Divorce Act. The Supreme Court of Canada has stated why it is important to give the judge sitting in divorce proceedings the discretion to decide how custody should be awarded in Talsky v. Talsky, [1976] 2 S.C.R. 292 at 296:
... The question of custody of an infant is a matter which peculiarly lies within the discretion of the Judge who hears the case and has the opportunity generally denied to an Appellant tribunal of seeing the parties and investigating the infant's circumstances, and that his decision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.
This passage applies to the standard of review for an appellate court, but it is equally apt for a judge trying to determine from the outside, for unknown applicants, whether the Guidelines are fair or not, whether the best interest of the child is indeed served or not.
[57] Because each situation is different, the judge must exercise his or her discretion. The Supreme Court ruled in Young v. Young, supra, that such discretion was in the best interest of the child, and could not be considered contrary to the values embodied by the Charter.
¶ 74 Custody and access decisions are pre-eminently exercises in discretion. Case by case consideration of the unique circumstances of each child is the hallmark of this process. This Court recognized in Moge v. Moge, supra, in the context of spousal support decisions, that the discretion vested in the trial judge is essential to effect the very purposes outlined in the Act. The wide latitude under the best interests test permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. Such discretion also permits the judge to focus on the needs of the particular child before him or her, recognizing that what may constitute stressful or damaging circumstances for one child may not necessarily have the same effect on another.
...
¶ 157 Freedom of religion and expression are fundamental values protected by the Charter. However, the best interests of the child standard in the Divorce Act does not offend Charter values, but is completely consonant with the underlying objectives of the Charter.
3) The facts presented by the plaintiffs are of a general nature and give a partial view of reality. Moreover, their reasoning runs counter to the development of family law both through legislation and case law.
[58] The evidence provided by the plaintiffs as to the biased language and implementation of the Divorce Act is itself biased and unsatisfactory. We are provided with figures that state that in custody awards, sole custody is awarded to the mother in some 80% of the cases. We are told nothing of cases that are settled out of court - where parents do agree on joint custody and other private arrangements, without resorting to the courts. Knowing what happens when people fail to agree and must have the case decided by the judge is seeing only part of the picture.
[59] From Young v. Young, supra, paragraphs 44 and 45:
...Above all, [joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness must be sincere and genuine; by its very nature it is not something that can be imposed by a Court on two persons, one or both of whom may be unwilling or reluctant to accept it in all its implications. Like marriage itself if it is to succeed, it is an arrangement that has to be worked out by two persons who are determined, or their own will and in good faith, to make it work.
When parents are willing and able to share parenting responsibilities, they usually do so by agreement, which courts generally uphold (Kruger v. Kruger, supra; Baker v. Baker, supra; Keyes v. Gordon (1985), 45 R.F.L. (2d) 177 (N.S.C.A.); Dussault v. Ladouceur, supra; Droit de la famille - 316, [1986] R.D.F. 651 (Que. C.A.)). Courts are also reluctant to interfere with shared parenting arrangements that have survived for a period of time after parental separation or divorce (see J. D. Payne and B. Edwards, "Co-operative Parenting After Divorce: A Canadian Perspective" (1989), 11 Advocates' Q. 1, at pp. 13-15; S. M. Holmes, "Imposed Joint Legal Custody: Children's Interests or Parental Rights?" (1987), 45 U.T. Fac. L. Rev. 300).
[60] We are presented with calculations that purport to demonstrate the alleged enrichment of women who receive child support on behalf of their children. We are told nothing of statistics on who is the primary caregiver in most Canadian households, nor which gender is more likely to place a career on hold for several years to raise children, thus losing precious career advancement opportunities. In Moge v. Moge, [1992] 3 S.C.R. 813, Madam Justice L'Heureux-Dubé, writing for the majority, painted a somewhat different portrait of the economic reality of women after divorce from that presented by the plaintiffs:
...Several years ago, L. J. Weitzman released her landmark study on divorce, The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (1985), and concluded at p. 323:
For most women and children, divorce means precipitous downward mobility -- both economically and socially. The reduction in income brings residential moves and inferior housing, drastically diminished or nonexistent funds for recreation and leisure, and intense pressures due to inadequate time and money. Financial hardships in turn cause social dislocation and a loss of familiar networks for emotional support and social services, and intensify the psychological stress for women and children alike. On a societal level, divorce increases female and child poverty and creates an ever-widening gap between the economic well-being of divorced men, on the one hand, and their children and former wives on the other.
(See also J. B. McLindon, "Separate But Unequal: The Economic Disaster of Divorce for Women and Children" (1987), 21 Fam. L.Q. 351.)
¶ 57 The picture in Canada seems to follow a similar pattern. In the federal Department of Justice (Bureau of Review), Evaluation of the Divorce Act - Phase II: Monitoring and Evaluation (1990), it was found, based on client interviews that, following divorce, 59 percent of women and children surveyed fell below the poverty line, a figure that dropped to 46 percent when support was included in the calculation of their incomes (see pp. 92-93). However, a more realistic picture, as it is not restricted to the more affluent segment of the divorcing public, is probably revealed by an analysis of court files, which determined that in 1988, overall two-thirds of divorced women had total incomes which placed them below the poverty line. When support was excluded, 74 percent of divorced women fell below the poverty line (see pp. 94-95). It is apparent