Premi v. Khodeir – The Constitutionality of the Federal Child Support Guidelines

In this case, the father challenged the constitutionality of the Federal Child Support Guidelines (“the Guidelines”).

Altra Vires:

First, the father argued that the Guidelines are unconstitutional because they are altra vires (a fancy Latin term that basically means overstepping authority) of the Divorce Act (the legislation under which the Guidelines were enacted).

He argued that the Guidelines are altra vires because they do not take into consideration (i) the relative abilities of parties to contribute to the maintenance of children, and (ii) the joint costs of separated parents to raise children.

(1) The Relative Abilities of the Parties to Contribute: The father argued that because the Guidelines only consider the payor’s income, they do not take the ability of both parties into account. He pointed out that the Quebec Child Support Guidelines take both parents’ incomes into account when determining child support payments and argued that the Federal Guidelines must do so as well.Justice Turnbull agreed that perhaps it is best to take the income of both parties into account when determining the amount of child support that must be paid, but this does not mean that there is anything unconstitutional about Parliament’s decision to calculate child support payments without considering the recipient’s income. When drafting the Guidelines, legislators considered this issue and made a difficult policy decision, which is exactly what they are required to do. Judges cannot overrule legislation just because they think the legislators could have made a better decision.

(2) The Joint Costs of Separated Parents: The father also argued that the Guidelines do not take into account the fact that payor parents spend money on their children in addition to the child support payments that they make when they exercise access with their children. According to the Guidelines, both parties must contribute to child support payments only when each party spends at least 40% of their time with the children. This often leads to parents making access decisions that allow them to pay the least amount of child support, instead of making access decisions based on what is best for the children.Justice Turnbull stated that it is unfortunate that some parents are more concerned about child support payments than time with their children when negotiating access agreements, but this does not mean that the legislative decision to enact this 40% rule is unconstitutional. He pointed out that this 40% rule was made because it makes the Guidelines clear and easy to apply, which is a key purpose of the Guidelines. Justice Turnbull explained that it is Parliament’s job to make these important policy decisions, not that of the Courts.

Breach of Charter Rights:

Secondly, the father argued that the Guidelines are unconstitutional because (i) they limit his freedom of expression (section 2(b) of the Charter of Rights and Freedoms), and (ii) they violate his right to equality (section 15(1) of the Charter of Rights and Freedoms).

(1) Freedom of Expression: The father argued that the Guidelines violate his freedom of expression because they restrict his ability to express that he is a parent actively involved in the lives of his children.Justice Turnbull held that the father provided no foundation for this argument.

(2) Equality Rights: The father’s argument that the Guidelines violate his right to equality can be summarized as follows:

a) Fathers usually pay child support (approximately 94% of the time), while women usually receive it.

b) The payor’s income is taken into account when determining child support payments, while the recipient’s income is not.

c) As such, men are usually required to pay child support based on their income and have an obligation not to be underemployed or intentionally unemployed, while women usually do not.

d) Therefore, the Guidelines discriminate based on gender, which is a violation of equality rights as defined by the Charter of Rights and Freedoms.

When determining if equality rights have been violated, one group must be compared to another. Here, the father compared payors of child support to those who receive child support payments.

Justice Turnbull decided that the father was comparing the wrong groups. The father should not have compared payors to recipients, but male payors to female payors, who are treated exactly the same under the Guidelines. Therefore, the Guidelines are not discriminatory because payors and recipients are not protected groups under the Charter of Rights and Freedoms and there is no gender discrimination when payors of different genders are compared.

In sum, Justice Turnbull provided a detailed explanation as to why the Guidelines are constitutional, and upheld their constitutionality.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

This Post Has One Comment
  1. This is a very interesting policy discussion regarding the purpose of the Guidelines and their effect versus intended purpose. Justice Turnbull takes the time to properly analysis the constitutional arguments even though the application was already dismissed based on the fact that the constitutional challenge basically amounts to a collateral attack on a previous court decision. If clients are unhappy with a decision they must go about challenging same through the proper avenues, namely the appeal process. One cannot post-Order raise constitutional arguments as a way of getting around a court Order. Ultimately I not only agree with the decision of Justice Turnbull, I also agree with the obiter dicta regarding the role of the legislator versus the role of the courts. It is not a court’s place to undermine legislative decisions. Just because a judge may not agree with a piece legislation does not mean that the piece of legislation may be found unconstitutional.

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