“A proper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute. In my opinion, the plain language of s. 4 is consistent with such an interpretation. Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”. Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000. I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.
I add one final comment. As noted above, Abella J.A. was concerned with the differential treatment of children. In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high income parents any of the intended benefits of the Guidelines. The plain wording of s. 4(b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents’ income. They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000. Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded. In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent. However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments. Section 26.1(2) of the Act states that “[t]he guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (emphasis added). While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child’s reasonable needs. In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support. I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support. But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines. Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4. In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines’ objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children’s reasonable needs so as no longer to qualify as child support. This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate”.
Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 40-41