Date: 20020917

Docket: 98-930-IT-I

BETWEEN:

GEORGE BELLEMORE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Mogan J.

[1]            The principal issue in this appeal is whether certain amounts paid by the Appellant in 1996 are deductible in computing income as alimony, maintenance or some other allowance under paragraph 60(b) or 60(c) of the Income Tax Act. The Appellant has deducted in computing income the amounts he paid in 1996. By notice of reassessment dated November 10, 1997, the Minister of National Revenue disallowed the deduction of such amounts. The Appellant has appealed from that reassessment and has elected the informal procedure. The secondary issue in this appeal is whether paragraphs 60(b) and 60(c) are discriminatory within the meaning of section 15 of the Canadian Charter of Rights and Freedoms. The only taxation year under appeal is 1996.

[2]            The Appellant married a woman named Shirley on September 20, 1969. There were two sons born of the marriage: Sean Christopher born on January 7, 1973; and Michael Joseph born on November 26, 1975. The Appellant and Shirley separated on April 1, 1983. After the separation, the two sons remained in the custody of Shirley. The Appellant was required to pay child support to Shirley in accordance with a court order issued in October 1983. Pursuant to a decree absolute issued by an Ontario court on May 26, 1989 (Exhibit A-1), Shirley was granted a divorce from the Appellant; she was granted custody of the two sons; and the Appellant was required to pay child support to Shirley at $85.00 per week per child commencing March 17, 1989.

[3]            Under paragraph 4 of the decree absolute, the child support payments were to be adjusted in the month of March each year by an indexing factor determined in the previous November. Shirley died in July 1992. At the time of her death, Sean was 19 years of age and Michael was 16. The two sons continued to reside with Shirley's brother (their uncle) in the same dwelling where they had resided with their mother before her death. Apparently, there was a temporary court order issued in February 1993 requiring the Appellant to continue to pay child support. The Appellant was informed that the child support amounts which had been deducted from his pay would no longer be deducted after October 1993 when Sean would be 20 and Michael would be 18.

[4]            After the support payments ceased in November 1993, the two sons commenced an action in court against the Appellant (their father) claiming maintenance or some form of support. The dispute was settled out of court. Under Minutes of Settlement signed in September 1995 (Exhibit R-1), Sean abandoned all claims against the Appellant; and Michael abandoned all claims for back payments of support in exchange for the following three promises:

(a)            the Appellant promised to pay to Michael a lump sum of $1,200 for the 1995/1996 school year;

(b)            the Appellant promised to pay to Michael a lump sum of $1,200 for the 1996/1997 school year; and

(c)            the Appellant promised to pay to Michael the sum of $140 per week (commencing September 8, 1995) so long as he was in full-time attendance at a post-secondary educational institution but not later than May 1997.

The Minutes of Settlement (Exhibit R-1) were incorporated into a Judgment issued by the Ontario Court (General Division) on November 2, 1995 (Exhibit A-2). The Appellant kept the promises made to Michael in the Minutes of Settlement and reinforced in the Judgment. In computing his income for 1996, the Appellant deducted $7,062 with respect to the amounts paid to Michael as support under the Minutes of Settlement. In the reassessment under appeal, the Minister disallowed the deduction of the $7,062 amount.

The application of section 60 of the Income Tax Act

[5]            The Appellant's primary claim is that he is entitled to the deduction under paragraph 60(b) or 60(c) of the Act. Those paragraphs are set out below:

60             There may be deducted in computing a taxpayer's income for a taxation year such of the following amounts as are applicable:

(a)            ...

(b)            an amount paid by the taxpayer in the year as alimony or other allowance payable on a periodic basis for the maintenance of the recipient, children of the recipient or both the recipient and the children, if the taxpayer, because of the breakdown of the taxpayer's marriage, was living separate and apart from the spouse or former spouse to whom the taxpayer was required to make the payment at the time the payment was made and throughout the remainder of the year and the amount was paid under a decree, order or judgment of a competent tribunal or under a written agreement;

(c)            an amount paid by the taxpayer in the year as an allowance payable on a periodic basis for the maintenance of the recipient, children of the recipient or both the recipient and the children, if

(i)             at the time the amount was paid and throughout the remainder of the year the taxpayer was living separate and apart from the recipient,

(ii)            the taxpayer is the natural parent of a child of the recipient, and

(iii)           the amount was received under an order made by a competent tribunal in accordance with the laws of a province;

[6]            The Appellant's claim to deduct under paragraph 60(b) cannot succeed. Under paragraph 60(b), there are four conditions to be met. The amount must be paid:

(i)             pursuant to a decree order or judgment of a competent tribunal or pursuant to a written agreement;

(ii)            as alimony or other allowance payable on a periodic basis;

(iii)           for the maintenance of the recipient, children of the marriage, or both the recipient and children of the marriage; and

(iv)           if the payor was living apart from and was separated pursuant to a divorce or written agreement from the payor's spouse or former spouse to whom the payments were required to be made.

The Appellant's payments to Michael can meet the first condition because of the Minutes of Settlement (Exhibit R-1) and the Judgment (Exhibit A-2). With respect to the second condition, those payments cannot be alimony because it must be paid to a separated or former wife. The payments were, however, an allowance payable on a periodic basis, and so the Appellant can meet the second condition. The Appellant can also meet the third condition because the amounts were paid for the maintenance of his son, Michael.

[7]            The Appellant cannot meet the fourth condition because it requires that the amounts in question be paid to a separated or former wife. The Appellant's former wife had died in July 1992 and the amounts in question were paid to his son Michael in 1996. By parallel reasoning, the Appellant's claim to deduct under paragraph 60(c) cannot succeed. The Appellant cannot meet the second condition in subparagraph 60(c)(ii) because he is not the natural parent of a child of Michael. Therefore, having regard to the amounts paid to Michael in 1996, the Appellant is not permitted to deduct those amounts in computing his income under paragraph 60(b) or 60(c).

[8]            Apart from the Appellant's failure to satisfy the conditions in paragraphs 60(b) and 60(c), those paragraphs and their counterparts in paragraphs 56(1)(b) and (c) are part of an inclusion/deduction concept which was not intended to address the needs of a single parent who must provide support for his or her children without regard to whether the single parent is separated or divorced. The payments in dispute were made in 1996, three years after the death of the Appellant's former wife, and were not made under an arrangement between a separated or divorced couple. On the contrary, the payments in dispute were made as the result of a claim for support by Michael against his father (the Appellant) under the Ontario Family Law Act. The Appellant's obligation to pay support to Michael was personal and independent from any separation or divorce.

The application of section 15 of the Charter

[9]            The Appellant's secondary claim is that paragraphs 60(b) and 60(c) are discriminatory within the meaning of subsection 15(1) of the Canadian Charter of Rights and Freedoms which states:

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.

In a number of cases, the courts have held that subsection 15(1) is not restricted to the named categories (e.g. race, religion, age or disability) but applies equally to analogous groups. In his Amended Notice of Appeal, the Appellant seems to have grounded his claim for discrimination on gender (sex) because of the following statements which are taken from the Amended Notice of Appeal:

8.              The vast majority of payors of support are males.

9.              Males with a spouse or former spouse may deduct support payments from their income.

10.            Those males without a spouse or former spouse do not get to deduct.

At the hearing of this appeal, however, the Appellant's counsel changed his position and also argued that the Appellant belonged to the following analogous group who are the object of discrimination under section 60 of the Income Tax Act:

a surviving parent (after the death of the other parent) who has an obligation under the law to pay support to a child living apart from the surviving parent.

Specifically, the Appellant claims that paragraphs 60(b) and 60(c) discriminate against the above analogous group because a surviving parent is not permitted a deduction under either paragraph. The Appellant accepts the limitation of the supported child "living apart from the surviving parent" because a widow or widower who supports a child in the same dwelling will have the benefit of a tax credit under section 118 of the Income Tax Act.

[10]          If the Appellant had persisted in his claim for discrimination based only on gender, I would have simply dismissed his appeal because either a male or a female may deduct an amount under paragraph 60(b) or 60(c) if the required conditions are met. Because the Appellant changed the ground for his discrimination claim, I am required to consider whether the group of surviving parents described in paragraph 9 above is an "analogous group" within the context of subsection 15(1) of the Charter.

[11]          In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the Supreme Court of Canada set out an analytical framework for a challenge to legislation under section 15 of the Charter:

(a)            whether the law imposes differential treatment between the claimant and others, in purpose or effect;

(b)            whether one or more enumerated or analogous grounds of discrimination are the basis for differential treatment;

(c)            whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

I will attempt to apply this analysis.

(a)            Differential Treatment

[12]          The alleged differential treatment is that the Appellant is not permitted a deduction where others are. To determine differential treatment, we must ask from whom the Appellant is treated differently. Is there a comparison group? See Law at page 532, paragraph 58. The Appellant compares his group's treatment with those who qualify under section 60. He claims that he did not qualify because of two personal characteristics: he is male, and he did not in 1996 have a spouse or former spouse. His former spouse had died in 1993. Notwithstanding the Appellant's claims, the real reason the Appellant did not qualify for a deduction under section 60 is that his payments were made pursuant to an order his son obtained against him under the Family Law Act, R.S.O. 1990, F.3. Section 31 of the Family Law Act states:

31(1)        Every parent has an obligation to provide support, for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

31(2)        The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[13]          Thus, the differential treatment was not based on a personal characteristic. Anyone in his situation (whether male or female, married or divorced, surviving spouse or not) would not qualify for the deduction. In this appeal, the differential treatment is based on an event. It is based on the fact that his son had to sue him for support. This event puts the payments which the Appellant made under a regime different from the one intended under section 60. Having regard to the first step in the analytical framework, the Appellant does not succeed because his differential treatment was not based on a personal characteristic.

(b)            Enumerated or Analogous Grounds

[14]          The grounds upon which the Appellant relies are sex (gender) and marital status (surviving spouse). Sex is an enumerated ground. Marital status is an analogous ground. Neither sex nor marital status was the basis for the Appellant's differential treatment. The Appellant would not qualify for the deduction under paragraph 60(b) or 60(c) if he were male or female. The treatment of the sexes under section 60 is equal. In Thibaudeau v. Canada [1995] 2 S.C.R. 627, the Supreme Court of Canada found that, even though males statistically were more often the ones paying support, the provisions of the Act which incorporate family legislation requiring support are not unconstitutional.

[15]          In Miron v. Trudel, [1995] 2 S.C.R. 418, the Supreme Court of Canada, in a 5-4 decision, held that marital status is an analogous ground. The Appellant claims that his treatment under section 60 is different from others based on his marital status. The Appellant's marital status is that of a divorcee. He is not a widower because that word would indicate that the deceased woman (Shirley) was still married to the Appellant when she died. The Appellant was making payments before his former spouse's death, and those payments were presumably deductible because divorcees qualify for a deduction under section 60 if they are paying support pursuant to a written agreement or a divorce decree. Since his former spouse's death, his payments are no longer deductible but his marital status is still the same: divorcee. Therefore, the differential treatment is not based on the ground of marital status. Even if the Appellant's former spouse were still alive, because his children sued him under section 31 of the Family Law Act, those payments would not be deductible. The non-deductibility of his payments to Michael is not due to his marital status but is due to Michael's lawsuit against him. The Appellant does not succeed on the second step in the analytical framework because his failure to have a deduction under section 60 was not based upon an enumerated or analogous ground.

(c)            Discrimination

[16]          Differential treatment is not necessarily discrimination. The key consideration for determining whether particular legislation is discriminatory is whether it offends the Appellant's human dignity. The Supreme Court of Canada posed this question in Law at paragraph 88:

... Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[17]          In this appeal, the above question must be answered in the negative. Section 60 withholds the benefit of a tax deduction from the Appellant. That withholding of the tax deduction does not reflect any stereotypes of the claimant's personal characteristics. That withholding of the tax deduction does not perpetuate the view that the claimant is of lesser worth. Section 60 makes a relevant distinction. The deduction was designed to facilitate the institution of marriage and the realities of separation and divorce. The impugned legislation (section 60) does not violate the Appellant's dignity nor perpetuate any stereotypes. The Appellant does not succeed on the third step in the analytical framework because there was no discrimination within the context of section 15 of the Charter.

Conclusion

[18]          The Appellant has not succeeded on any of the three steps in the section 15 analysis. He has not satisfied his burden of proof in establishing that his section 15 rights have been infringed. In Law v. Canada, Iacobucci J. stated at paragraph 51:

... It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. ...

[19]          The purpose of the deduction in section 60 is to allow a certain amount of income splitting between a separated or divorced couple so that the standard of living of the recipient (of the payments) and the children would not drop sharply from the standard of living which they all shared when the couple were still together. When a spouse or former spouse is deceased, there is no one with whom to split income. In Thibeaudeau, a majority of the Supreme Court concluded that the inclusion provision for support payments (section 56) could not be viewed without looking at the corresponding deduction provision (section 60). The two in tandem created a fairness in the law. In this case, the Appellant cannot deduct his payments but his son does not pay tax on those payments. Thus, the non-taxability and non-deductibility of payments, in tandem, create the same sort of fairness in the law.

[20]          In the many months since this appeal was heard, I have not found any "Charter decision" of a higher court which would assist the Appellant. The appeal is dismissed.

Signed at Ottawa, Canada, this 17th day of September, 2002.

"M.A. Mogan"

J.T.C.C.

COURT FILE NO.:                                                 98-930(IT)I

STYLE OF CAUSE:                                               George Bellemore & Her Majesty the Queen

PLACE OF HEARING:                                         Ottawa, Ontario

DATE OF HEARING:                                           March 19, 2001

REASONS FOR JUDGMENT BY:      The Honourable Judge M.A. Mogan

DATE OF JUDGMENT:                                       September 17, 2002

APPEARANCES:

Counsel for the Appellant: Joseph J. Comartin

Counsel for the Respondent:              Carole Benoit

COUNSEL OF RECORD:

For the Appellant:                

Name:                                Joseph J. Comartin

Firm:                  CAW Legal Services Plan

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

98-930(IT)I

BETWEEN:

GEORGE BELLEMORE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on March 19, 2001, at Ottawa, Ontario

the Honourable Judge M.A. Mogan

Appearances

Counsel for the Appellant: Joseph Comartin

Counsel for the Respondent:              Carole Benoit

Judgment

                The appeal from the assessment of tax made under the Income Tax Act for the 1996 taxation year is dismissed.

Signed at Ottawa, Canada, this 17th day of September, 2002.

"M.A. Mogan"

J.T.C.C.