Robert Strickland and five other applicants sought to challenge
the Federal Child Support
Guidelines as unlawful. They argue that the
Guidelines are not authorized by the Divorce Act. Unfortunately,
this important issue, despite having been litigated all the way to
the Supreme Court of Canada, will have to be re-litigated. The
Court dismissed the applicants’ claim
because the provincial superior courts are a better forum for such
an application because of those courts’ expertise in divorce
and child support matters.
First, the Supreme Court held that a provincial superior court
can hear and determine a challenge to the legality of the
Guidelines where that determination is a necessary step in
disposing of support proceedings properly before it. The Court
rejected the applicants’ argument that the Federal Court has
exclusive jurisdiction to declare federal regulations unlawful. As
the Court explained, the Federal Court has concurrent
jurisdiction with the provincial superior courts over claims
against the Federal Crown. The Federal Court’s exclusive
jurisdiction regarding judicial review of federal boards,
commissions and tribunals is an exception to this concurrent
jurisdiction. The TeleZone principal holds that the
provincial superior courts have the authority to consider and rule
on the legality of the actions of federal tribunals when doing so
is a necessary step in adjudicating claims properly before the
superior courts. So, in this case, the provincial superior courts
can address the legality of the Guidelines if doing so is
a necessary step to resolving a claim in a proceeding.
Second, the Federal Court exercised its discretion not to
undertake judicial review because there is an
“adequate” alternative remedy or forum. Some of the
factors to be considered include: the convenience of the
alternative remedy; the nature of the error alleged; the nature of
the other forum which could deal with the issue, including its
remedial capacity; the existence of adequate and effective recourse
in the forum in which litigation is already taking place;
expeditiousness; the relative expertise of the alternative
decision-maker; economical use of judicial resources; and cost. The
Supreme Court agreed that the provincial superior courts were such
an adequate alternative, even though the remedies were not
identical to those available at the Federal Court.
Though this case will likely only interest civil procedure or
administrative law students, it offers some practical guidance. If
there was any dispute that the Federal Court had exclusive
jurisdiction to grant judicial review remedies regarding federal
regulations (the parties, incorrectly, agree that it did), that
debate should be over. Further, the Court has re-affirmed that even
if the remedies are different, another court may be the adequate
alternative, especially where that court has breadth or expertise
in the subject-matter of the dispute.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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