Province of Residence is not an Analogous Ground of Discrimination: comparatively stingy Quebec child support guidelines do not violate section 15 of the Charter in Droit de la famille – 139, 2013 QCCA 15

January 2013 saw two important family law decisions disappoint the hopes of Quebec women and mothers. The hotly anticipated Quebec v A, 2013 SCC 5 decision of the Supreme Court of Canada (“SCC”) ruled that Quebec common law partners are not entitled to property division or spousal support upon the dissolution of the relationship. Earlier in the month in Droit de la famille – 139, 2013 QCCA 15 the Quebec Court of Appeal (“QCCA”) quietly held that Quebec’s lower child support guidelines would withstand constituitonal scrutiny as well.

The decision was an appeal from a lower court decision which held that Quebec’s child support guidelines – which are less generous to recipients compared to Federal child support guidelines – violated section 15(1) of the Charter of Rights and Freedoms (“Charter”). The lower court went on to hold that the violation was justifiable under section 1 of the Charter.

The QCCA overturned that decision and found that Quebec’s lesser child support guidelines do not violate section 15 of the Charter because “province of residence” is not an analagous ground of discrimination. Those in Quebec pushing for a more generous system of family law were undoubtedly disappointed and perhaps surprised; given the QCCA’s decision on Quebec v A, where it ruled that the inability of a common law partner to seek spousal support violates section 15, there was reason to hope the Court would be sympathetic to their position.

What this hope overlooked however is the important differences between recognizing discrimination on the basis of marital status and recognizing it on the basis of province of residence. The implications of the later would be enormous; any difference between provinces and territories would be vulnerable to constitutional challenge simply on the basis that a different provinces’ scheme is more favorable to the applicant. Such a finding would undermine provincial jurisdiction and the legal basis of our federation. Particularly given Quebec’s historic interest in preserving and strengthening its autonomy, the decision of the QCCA to reject province of residence as an analogous ground is readily understandable.

The Quebec Child Support Guidelines

The Divorce Act, RSC 1985 c 3, establishes default child support guidelines applicable to all divorcing spouses (“Federal Guidelines”). Pursuant to section 2(1) of that Act, provinces may supplant the Federal Guidelines by enacting their own. Quebec has done precisely that with An Act to amend the Civil Code of Québec and the Code of Civil Procedure as regards the determination of child support payments, S.Q. 1996, c. 68 (“Quebec Guidelines”). The Quebec Guidelines apply where both spouses or former spouses are ordinarily resident in Quebec at the time the application for a child support order is made. Unlike the Federal guidelines, the Quebec Guidelines apply to child support orders arising out of both divorces and separating common law couples. Although other provinces have enacted their own Guidelines, only Quebec’s are less generous to recipients than the Federal ones.

The Quebec Guidelines are considerably less favourable to recipient children than the Federal Guidelines. For example, one of the parties to the appeal was receiving $8,100 in child support each month under the Quebec Guidelines. She would have been entitled to approximately $20,000 monthly under the Federal Guidelines.

In addition to being a lower amount than the Federal Guidelines, the Quebec Guidelines consider a recipient spouse’s income in determining the amount of child support owed by the payer spouse. Rather than determining the payer’s obligations solely as a function of the payer’s income, under the Quebec Guidelines a payer’s obligation decreases with every dollar earned by a recipient spouse. The result is perverse incentives for a recipient spouse as well as a functional cap on the amount of money a child is entitled to.

The QCCA overturned the decision of the lower court which had found that the comparative strictness of the Quebec Guidelines violated section 15(1) of the Charter by creating a distinction between child support recipients on the basis of parent’s province of residence (the lower court went on to find that the violation was justified under section 1). According to the Court of Appeal, province of residence is not an analogous ground of discrimination. Thus, while there is a difference between the Quebec Guidelines and the Federal Guidelines, it does not violate section 15(1).

Province of Residence is not an Analogous Ground of Discrimination

The QCCA was not persuaded by the jurisprudence relied on by the applicants. The first case on the point, and perhaps the strongest one for the applicants, was R v Turpin, [1989] 1 SCR 1296. In that case the SCC held in obiter that province of residence may constitute a ground for discrimination in certain circumstances.

Corbière v Canada [1999] 2 SCR 203 is one instance where the Supreme Court of Canada accepted place of residence as an analogous ground. In the QCCA’s opinion however, it did not assist the applicants. Corbiere was about the voting rights of Indian Act Band members living off reserve; although place of residence was accepted as an analogous ground, it was intimately connected with aboriginal rights and identity. Indeed, in its decision the SCC was careful to note that reserve status should not be confused with ordinary residence, which as less profound impact on individual rights. Additionaly, in Corbiere the ground of discrimination was place of residence and not province; the reserve in question was in Ontario and many of the Band members who lived off reserve continued to live in Ontario.  Thus Corbiere cannot stand for the proposition that province of residence is an analogous ground. The limited scope of the Corbiere precedent was affirmed in Siemans v Manitoba, 2003 SCC 3.

After distinguishing the cases relied upon by the applicants, the QCCA found that province of residence – absent special circumstances such as those in Corbiere – is not an analogous ground. In support of this the Court noted that province of residence is not a characteristic that is immutable or changeable only at unacceptable cost to personal identity.

The QCCA also rejected province of residence as an analogous ground for reasons of federalism. Because the Charter and the division of powers set out in section 91 and 92 of the Constitution Act, 1867 must be read together, differences across provinces should not lightly be considered a violation of section 15. If every difference between provinces were vulnerable to a section 15 challenge, provincial autonomy would erode and regional standards would be replaced by national ones.

The QCCA found support for this reasoning in the decision of R v S(S), [1990] 2 SCR 254 which it quoted at length as follows:

“Obviously, the federal system of government itself demands that the values underlying section 15(1) cannot be unlimited in scope. The division of powers not only permits the differential treatment based upon province of residence, it mandates and encourages geographical distinction. There can be no question, then, that unequal treatment which stems solely from the exercise, by provincial legislators, of their legitimate jurisdictional powers cannot be the subject of a s 14(1) challenge on the basis only that it creates distinctions based upon province of residence.”

Because there is no prior authority and because of the demands of cooperative federalism, the QCCA rejected province of residence as an analogous ground of discrimination.

The Difference between Guidelines does not Perpetuate a Prejudice or Stereotype

Although its decision that province of residence is not an analogous ground of discrimination was dispositive of the matter, the QCCA went on to hold that the distinction created by the Quebec and Federal Guidelines does not create a disadvantage by perpetuating a prejudice or stereotype. In this regard it considered the following four contextual factors, as developed and applied in Law v Canada, [1999] 1 SCR 487  and R v Kapp, 2008 SCC 41:

1)     Pre-existing disadvantage, if any, of the claimant group;

2)     Degree of correspondence between the differential treatment and the claimant group’s reality;

3)     Whether the law or program has an ameliorative purpose or effect; and

4)     The nature of the interest affected.

On the first point, the Court noted that children of Quebec residents are not a historically disadvantaged group. It rejected the lower court’s characterization of the claimant group as the children of single or divorcing mothers; noting that the Quebec Guidelines apply equally to male and female recipients, the QCCA characterized the claimant group as the children of single or divorcing parents generally.

On the second point, the Court found that the differential treatment was based on the fact that the parties reside in a provinces where the legislatures have made different policy choices. The reality of Quebec parent’s being subject to the laws of the Quebec legislature is entirely relevant to the differential treatment they experience.

On the third point the Court noted that the introduction of the Quebec Guidelines was intended to ameliorate the prior condition of children, as compared to their status before any guidelines were introduced. This is undoubtedly true, but the reasoning is curious; while ameliorating the prior condition of children is undoubtedly the rationale behind having the guidelines, it doesn’t go to why the Quebec Guidelines are lower than the Federal ones.

Finally, on the fourth point the Court noted that both the Quebec and Federal Guidelines provide for support payments for all children; although the schemes contain differences, they have the same objectives.