Auer v. Auer

Auer v. Auer
Collection
Supreme Court Judgments
Date
2024-11-08
Neutral citation
2024 SCC 36
Case number
40582
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Alberta
Subjects
Administrative law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Auer v. Auer, 2024 SCC 36
Appeal Heard: April 25, 2024 Judgment Rendered: November 8, 2024 Docket: 40582
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
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 117)
Côté J. (Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ. concurring)
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Roland Nikolaus Auer Appellant
v.
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
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 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.
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.
The judgment of the Court was delivered by
Côté J. —
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
[1] The 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.
[2] To 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.
[3] I 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.
[4] However, 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.
[5] The 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.
[6] Contrary 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
[7] Roland 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.
[8] Mr. 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.
[9] Mr. 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
[10] The 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.
[11] The 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).
[12] Mr. 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.
[13] The 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
[14] The 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.
[15] Writing 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).
[16] Like 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.
[17] Justice 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
[18] The issues on appeal are as follows:
1. What is the applicable standard of review when reviewing the vires of subordinate legislation?
2. 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
[19] Vavilov 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.).
[20] That 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
[21] In 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).
[22] In 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).
[23] Vavilov’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
[24] Vavilov’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).
[25] No 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.
[26] In 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).
[27] All 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.
[28] Reviewing 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
[29] In Katz Group, our Court upheld the validity of Ontario regulations