D. Canadian Charter of Rights and Freedoms

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 26-27

Page 26

The Federal Child Support Guidelines are not ultra vires under section 26.1(2) of the Divorce Act nor do they violate the obligor’s rights under sections 2(b) or 15(1) of the Canadian Charter of Rights and Freedoms or under section 1(a) of the Canadian Bill of Rights.¹⁴

A constitutional challenge of the Federal Child Support Guidelines on the basis that they are beyond the legislative authority of Parliament and are inconsistent with the Canadian Charter of Rights and Freedoms cannot be pursued by divorced biological parents independently of proceedings in which they are personally engaged.¹⁵

Page 27

The Divorce Act does not contravene section 15(1) of the Canadian Charter of Rights and Freedoms so far as extramarital children are concerned.¹⁶An argument based on the equality provisions of section 15 of the Canadian Charter of Rights and Freedoms is inappropriate to a determination of the amount of support which necessitates a balancing of need and ability to pay.¹⁷While it is undoubtedly true that parents with disabilities have crucial expenses that able-bodied parents do not, the undue hardship section of the Federal Child Support Guidelines empowers courts to take these kind of factors into account in determining the amount payable. Accordingly, there is no substantial differential under the Guidelines between persons with disabilities and those without such as to constitute a contravention of section 15 of the Canadian Charter of Rights and Freedoms.¹⁸

[14] Premi v. Khodeir, [2009] O.J. No. 3365 (S.C.J.).

[15] Zeyha v. Canada (Attorney General), [2004] S.J. No. 721 (C.A.).

[16] Massingham-Pearce v. Konkulus (1995), 13 R.F.L. (4th) 313 (Alta. Q.B.).

[17] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. See Hommel v. Hommel (1985), 71 N.S.R. (2d) 85 at 90 (T.D.).

[18] Dyck v. Highton, [2003] S.J. No. 600 (Q.B.).