Summary

40582

Roland Nikolaus Auer v. Aysel Igorevna Auer, et al.

(Alberta) (Civil) (By Leave)

Keywords

Administrative law — Judicial review — Standard of review — Standard of review applicable to Guidelines — Whether Guidelines consistent with statutory grant of authority — Whether special rules apply to delegated legislation promulgated by Governor-in-Council — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) — Federal Child Support Guidelines, SOR/97-175.

Summary

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The appellant Roland Nikolaus Auer and the respondent Aysel Igorevna Auer married in 2004 and divorced in 2008. They had one child. Following the divorce, the Mr. Auer paid spousal and child support to the Ms. Auer. Mr. Auer challenged the Federal Child Support Guidelines, SOR/97-175, arguing that they are not authorized by s. 26.1(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). He brought an application to have the Guidelines declared ultra vires the Divorce Act.

The application judge granted the Attorney General for Canada leave to intervene on the application and gave the Attorney General broad rights, including a right to appeal an adverse decision. The Attorney General, in essence, became the respondent. Ms. Auer took no position and did not participate in the application. The application judge held that the Governor-in-Council’s decision to promulgate the Guidelines was reasonable. He dismissed Mr. Auer’s application to have the guidelines held ultra vires the Divorce Act. Mr. Auer’s appeal was dismissed.

Lower Court Rulings

May 11, 2021
Court of Queen’s Bench of Alberta

2021 ABQB 370
Application dismissed
November 22, 2022
Court of Appeal of Alberta (Edmonton)

2022 ABCA 375
Appeal dismissed