Citation: 2012TCC155
Date: 20120511
Docket: 2011-2240(IT)I
BETWEEN:
JENNIFER L. ASTLEY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb J.
[1]
The issue in this
appeal is whether the requirement to include a spouse’s income in determining
whether a particular person is eligible for the Canada Child Tax Benefit
(“CCTB”) is contrary to section 15 of the Canadian Charter of Rights and
Freedoms (the “Charter”) if the two individuals are married but have
not commenced to live together.
Subsection 15(1) of the Charter provides
as follows:
15. (1) Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
[2]
An individual’s CCTB
for a particular month is, in accordance with the formula as set out in
subsection 122.61(1) of the Income Tax Act (the “Act”), reduced
by the amount of that individual’s adjusted income for the base taxation year for
that month. For the first six months of any particular taxation year, the base
taxation year is the second preceding taxation year and for the last six months
of any particular taxation year, the base taxation year is the immediately
preceding taxation year.
[3]
“Adjusted income” is
defined in section 122.6 of the Act as follows:
“adjusted income”, of an individual for a taxation year, means the
total of all amounts each of which would be the income for the year of the
individual or of the person who was the individual's cohabiting spouse or
common-law partner at the end of the year if in computing that income no amount
were
(a) included
(i) under paragraph 56(1)(q.1) or subsection 56(6),
(ii) in respect of any gain from a disposition of property to which
section 79 applies, or
(iii) in respect of a gain described in subsection 40(3.21), or
(b) deductible under paragraph 60(y) or (z);
[4]
In determining the
Appellant’s adjusted income for any particular base taxation year, the income
of the person who was her cohabiting spouse at the end of such year, would have
to be added to her income. “Cohabiting spouse” is defined in section 122.6 of
the Act as follows:
“cohabiting spouse or common-law partner” of an individual at any
time means the person who at that time is the individual's spouse or common-law
partner and who is not at that time living separate and apart from the
individual and, for the purpose of this definition, a person shall not be
considered to be living separate and apart from an individual at any time
unless they were living separate and apart at that time, because of a breakdown
of their marriage or common-law partnership, for a period of at least 90 days
that includes that time;
[5]
Therefore whether a
person is a spouse or common-law partner of the particular individual, that
person’s income must be included in determining the particular individual’s
adjusted income. Since this requirement applies equally to individuals who are
married and who are in a common-law partnership there is no basis for a claim
that the definition of adjusted income discriminates between married couples
and those in a common-law partnership and therefore contravenes section 15 of
the Charter.
[6]
The Appellant’s
argument, however, is based on the requirement that individuals in a common-law
partnership must cohabit while individuals who are married do not need to
cohabit to be found to be cohabiting spouses. For the purposes of the
definition of “cohabiting spouse” it is not necessary that individuals who are
married actually cohabit, provided that they are not living separate and apart
as a result of a breakdown of their marriage. There is no stated requirement in
this definition for individuals in a common-law partnership to actually cohabit
to be “cohabiting common-law partners” (provided that they are not living
separate and apart as a result of a breakdown of their common-law partnership).
However, if they are not cohabiting, is there a common-law partnership?
[7]
A common-law
partnership is defined in subsection 248(1) of the Act as follows:
“common-law partnership” means the relationship between two persons
who are common-law partners of each other;
[8]
A common-law partner is
defined in subsection 248(1) of the Act as follows:
“common-law partner”, with respect to a taxpayer at any time, means
a person who cohabits at that time in a conjugal relationship
with the taxpayer and
(a) has so cohabited with the taxpayer for a continuous period of at
least one year, or
(b) would be the parent of a child of whom the taxpayer is a parent,
if this Act were read without reference to paragraphs 252(1)(c) and (e) and
subparagraph 252(2)(a)(iii),
and, for the purposes of this definition, where at any time the
taxpayer and the person cohabit in a conjugal relationship, they
are, at any particular time after that time, deemed to be cohabiting in a
conjugal relationship unless they were not cohabiting at the particular time
for a period of at least 90 days that includes the particular time because of a
breakdown of their conjugal relationship;
(emphasis added)
[9]
The opening part of the
definition of “common-law partner” provides that it applies to individuals who cohabit.
The closing part also is only applicable where the individuals cohabit.
As a result cohabitation is a requirement for individuals to be found to be in a
common-law partnership. It is this requirement for cohabitation that must be
met in order for a common-law partnership to exist and therefore for a
common-law partner’s income to reduce the CCTB of one of the common-law partners
that the Appellant emphasized in her argument that the definition of cohabiting
spouse is contrary to section 15 of the Charter. The Appellant also
emphasized that she and John Overton did not share in any expenses or income
while they were living separate and apart. However, there is no requirement for
any sharing of financial resources for two persons to be found to be in a
common-law partnership. It also does not seem to me that a claim for
discrimination under section 15 of the Charter could be based on whether
financial resources are shared.
[10]
The Appellant (who was
living in Canada) began communicating with John Overton (who was living in
Great Britain) over the internet in 2003. They met a
couple of years later and the relationship continued. In 2007 they decided to
get married and were married on February 29, 2008. After the marriage ceremony
John Overton returned to Great
Britain so that his
application to immigrate to Canada could be processed. His sponsor was the
Appellant. While they expected the application to only take about eight months,
it took over a year and he did not move to Canada until June of 2009 and became
a permanent resident of Canada in September 2009. At the end of the base
taxation year 2008, the Appellant and John Overton were married but they
were not living together as he was still in the United Kingdom waiting for his immigration application to be
approved.
[11]
In determining the
Appellant’s entitlement to CCTB payments for the base taxation year 2008 (which
would be the payments that she would have received from July 2009 to June 2010)
and for the base taxation year 2009 (for the payments she received in July and
August 2010), the Respondent added John Overton’s income for these base
taxation years to the income of the Appellant and determined that she had been
overpaid the CCTB for the months of June 2009 to August 2010.
[12]
In determining whether
a cohabiting spouse’s income is included in a person’s adjusted income for a
particular year, the question is whether that other person is a cohabiting
spouse at the end of that particular year. In this case the question is whether
John Overton was a cohabiting spouse at the end of 2008 and at the end of 2009.
Based on the provisions of the Act, he was a cohabiting spouse at the
end of each of these years as he was married to the Appellant and they were not
living separate and apart as a result of a breakdown of their marriage.
[13]
The Appellant’s
argument is that the definition of cohabiting spouse is based solely on whether
they were married and not on whether they were cohabiting. The Appellant
submits that based on the decision of the Supreme Court of Canada in Miron
v. Trudel, [1995] 2 S.C.R. 418 that marital status is an analogous ground
for the purposes of section 15 of the Charter. The issue in that case,
as described by Justice McLachlin (as she then was) was as follows:
119 McLACHLIN
J.:-- This appeal requires us to decide whether exclusion of unmarried partners
from accident benefits available to married partners violates the equality
guarantees of the Canadian Charter of Rights and Freedoms. I conclude that it
does.
[14]
The CCTB provisions, in
relation to the requirement to include another person’s income in “adjusted
income” of a particular person, apply equally whether the particular person is
married to the other person or in a common-law partnership with the other
person. Therefore no distinction is drawn between unmarried partners (who are
in a common-law partnership) and married partners. The Appellant submits
however that the distinction is that to be in a common-law partnership two
individuals must cohabit but cohabitation is not necessary if the two
individuals are married.
[15]
In Withler v.
Canada (Attorney General), 2011 SCC 12, Chief Justice McLachlin
and Justice Abella writing on behalf of the Supreme Court of Canada stated
that:
30 The
jurisprudence establishes a two-part test for assessing a s. 15(1) claim: (1)
does the law create a distinction that is based on an enumerated or analogous
ground? and (2) does the distinction create a disadvantage by perpetuating
prejudice or stereotyping? (See Kapp, at para. 17.)
31 The
two steps reflect the fact that not all distinctions are, in and of themselves,
contrary to s. 15(1) of the Charter (Andrews; Law; Ermineskin
Indian Band, at para. 188)….
[16]
In order to satisfy the
first part of the test, the law must create a distinction. As noted above, no
distinction is created in the provisions of the Act referred to above
between married couples and those in a common-law partnership. In both
situations the income of the spouse or common-law partner is to be included in
determining the adjusted income of the particular person claiming the CCTB
(provided that they are not living separate and apart because of a breakdown in
their marriage or common-law partnership). There is, however, a distinction under
the Act between married couples who do not live together (by choice or
as a result of a legal impediment and not as a result of a breakdown of their
marriage) and unmarried couples who do not live together. If the Appellant
would not have married John Overton in February 2008, she would not have had to
include his income in determining her adjusted income for her 2008 base
taxation year since they did not start to live together until June 2009.
Therefore her marital status alone resulted in the requirement to include John Overton’s
income in determining her adjusted income for the 2008 base taxation year.
[17]
The Appellant’s
argument is therefore that she is being discriminated against because she
married John Overton in February 2008 but did not commence to live with him
until June 2009. While marital status is an analogous ground, as noted above,
Equality is
not about sameness and s. 15(1) does not protect a right to identical
treatment. Rather, it protects every person's equal right to be free from
discrimination. Accordingly, in order to establish a violation of s. 15(1), a
person "must show not only that he or she is not receiving equal treatment
before and under the law or that the law has a differential impact on him or
her in the protection or benefit accorded by law but, in addition, must show
that the legislative impact of the law is discriminatory"
[18]
The Appellant and John
Overton chose to be married. She then became his sponsor for his immigration
application. Why should they be treated the same as a couple who are not
married and who do not live together?
[19]
In Withler v.
Canada (Attorney General), above, Chief Justice McLachlin
and Justice Abella writing on behalf of the Supreme Court of Canada stated
that:
65 The
analysis at the second step is an inquiry into whether the law works
substantive inequality, by perpetuating disadvantage or prejudice, or by
stereotyping in a way that does not correspond to actual characteristics or
circumstances. At this step, comparison may bolster the contextual understanding
of a claimant's place within a legislative scheme and society at large, and
thus help to determine whether the impugned law or decision perpetuates
disadvantage or stereotyping. The probative value of comparative evidence,
viewed in this contextual sense, will depend on the circumstances. (See Andrea
Wright, "Formulaic Comparisons: Stopping the Charter at the
Statutory Human Rights Gate", in Fay Faraday, Margaret Denike and M. Kate
Stephenson, eds., Making Equality Rights Real: Securing Substantive Equality
under the Charter (2006), 409, at p. 432; Sophia Reibetanz Moreau,
"Equality Rights and the Relevance of Comparator Groups" (2006), 5
J.L. & Equality 81; Pothier.)
[20]
There was no evidence
of how the requirement for married couples, even if they do not live together,
to combine their income for the purposes of the CCTB “perpetuates disadvantage or stereotyping” of married
couples. In
Schachtschneider v. The Queen, 93 DTC 5298,
Justice Linden made the following comments:
… Marital
status, therefore, can properly be considered an analogous ground for the
purposes of section 15….
As I have
indicated, the ground of discrimination -- marital status -- should not be
confused with the group claiming discrimination -- married people. Thus, while
marital status may be accepted as an analogous ground, in order to determine
whether there has been discrimination based on that ground, we must examine the
particular circumstances of the group of which the claimant is a member. In the
case before us, the applicant claims to be discriminated against as a married
person; however, it cannot be said that married persons have been socially,
politically, or historically disadvantaged in Canada (R. v. Swain,
supra, at p. 992). Rather, members of our society who are married may well
have experienced some privilege and advantage as a result of their status.
Married persons are not a discrete and insular minority, nor are they an
independently disadvantaged group.
[21]
It does not seem to me
that there is any basis for a claim that the requirement to include John
Overton’s income with the Appellant’s income when they are married but not
living together (which is not as a result of a breakdown of their marriage) results
in discrimination against the Appellant as a married person.
[22]
As a result the
Appellant’s appeal is dismissed, without costs.
Signed at Halifax, Nova Scotia, this 11th day of May, 2012.
“Wyman W. Webb”
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