Digests

L'Action des Nouvelles Conjointes du Québec v. Canada

T-1473-03

2004 FC 797, Blais J.

1/6/04

34 pp.

Appeal from prothonotary's order striking statements of claim--Plaintiffs registered corporations, non-profit companies--Submitting both because of language and implementation, Divorce Act (Act), ss. 16 and 26.1 discriminate against men and deprive them of equality, privacy and property rights under Canadian Charter of Rights and Freedoms (Charter), common law, Canadian Bill of Rights, as well as right to freedom of association and expression under Charter--Moreover, by determining how private contracts (i.e. arrangements between parents post-divorce) should be established and by imposing payments on fathers, Act exceeds authority of Parliament and enters realm of property and civil rights, matters under provincial jurisdiction--Prothonotary allowed motion to dismiss on ground plaintiffs lacking standing since other reasonable, effective means of raising constitutionality of Divorce Act provisions in individual cases--As to basis in law for striking statement of claim, Prothonotary Hargrave holding in Munzel v. Canada (1998), 98 DTC 6556 (F.C.T.D.), Federal Court Rules, 1998, r. 221 may be utilized to strike out pleadings where plaintiff has no standing--Review of case law on public interest standing-- Rule seems to be public interest standing will be granted where no individual litigant can be expected to go forward with constitutional challenge--Personal hardship not criteria which Supreme Court will take into account in this assessment of standing--Prothonotary stated, on balance of probabilities, it could be expected private litigants in divorce proceedings would raise constitutional challenges if warranted--Thus, although may be serious issues at stake, and groups do have genuine interest in matter, plaintiffs not establishing that there exists no reasonable and effective way to raise issues before courts other than by way of plaintiffs' action--Plaintiffs not having standing in actions--Furthermore, Federal Court not appropriate forum to challenge Divorce Act--Parliament granted jurisdiction on divorce to provincial superior courts; and even if concurrent jurisdiction in matter, preferable for Court mandated by regulatory scheme of Act to hear matters under Act--Federal Court given narrow mandate by Divorce Act--Even though Federal Court has jurisdiction to hear challenges of federal legislation, cannot sever court challenge from subject-matter--Superior court of provinces appropriate forum--Plaintiffs have no reasonable cause of action since some of issues raised have already been settled--Supreme Court, in Young v. Young, [1993] 4 S.C.R. 3, has already concluded Divorce Act, s. 16(8) not violating Charter, s. 2(a), (b), (d) or 15(1)--Further, Supreme Court has often emphasized importance of specific fact situations, both in case of Charter challenges and in case of divorce proceedings-- General declaratory relief in case such as this not satisfactory--Facts presented by plaintiffs of general nature and give partial view of reality--Moreover, plaintiffs' reasoning counter to development of family law both through legislation and case law--Plaintiffs seem to be attempting to obtain reference to Supreme Court of Canada on constitutional issue--Such proceeding open to government under Supreme Court Act, s. 53, but not to individual litigant, interest group --Proceeding by way of Federal Court not solving problem-- Appeal dismissed--Divorce Act, R.S.C., 1985 (2nd Supp.), c. 3, ss. 16, 26.1 (as enacted by S.C. 1990, c. 18, s. 2)-- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 2, 15-- Canadian Bill of Rights, R.S.C., 1985, Appendix III-- Supreme Court Act, R.S.C., 1985, c. S-26, s. 53--Federal Court Rules, 1998, SOR/98-106, r. 221.