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Citation: 2004TCC460
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20041104
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Docket: 2002-4718(IT)I
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BETWEEN:
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WILLIAM S. CAMPBELL,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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CORRECTED REASONS FOR JUDGMENT
(Replaces Reasons for
Judgment dated October 7, 2004. Correction at paragraph 71.)
Hershfield J.
Introduction
[1] This case concerns a father's claim that he was the
primary caregiver to his son
for periods affecting his
1995, 1996 and 1997 taxation years and that he thereby meets the requirements of the Income Tax Act
("ITA") to receive the Canada Child Tax Benefit ("CCTB"). The
case concerns as well the treatment of male versus female parents under the
provisions of the CCTB in the context of the equality guarantees found in the Canadian
Charter of Rights and Freedoms ("Charter"). The impugned
provisions under the ITA and Income Tax Regulations ("Regulations")
contain a presumption that where a child resides with both parents, the female
parent is the primary caregiver and thus the parent eligible to receive the
CCTB. The impact of this presumption in light of sections 15 and 28 of the
Charter and subsection 52(1) of the Constitution Act is dealt
with in these Reasons as well as Appellant's claim that he was, in fact, the
primary caregiver to his son during the period under review. The Respondent
acknowledged that the required notices under section 19.2 of the Tax
Court of Canada Act ("TCCA") have been sent in respect of
the Appellant's Charter challenge.
[2] The
Minister initially accepted the Appellant's claim on the basis that the
Appellant had care of his son and did not have a spouse during the relevant
periods. The Minister later learned that the Appellant was in fact married
during the relevant periods and that he resided with his spouse and their son
in the same home throughout such periods. Relying on the presumption that the
female parent is the primary caregiver in these circumstances, the Minister
re-determined that the Appellant was not entitled to the benefits initially
allowed. The Appellant appeals that re-determination.
[3] At
this point it would be helpful to note that the relevant periods in this appeal
do not correspond with the taxation years appealed. This results from the way
in which the CCTB is calculated. Simply, the CCTB is a non-taxable amount paid
monthly to an eligible individual to assist in the raising of a child. The
amount is calculated by looking at the eligible individual's "base
year" as defined in the ITA. In the present case, the
Appellant was in receipt of the CCTB for the months April 1997 through April
1999. The base years for these months are as follows:
April 1997 to June 1997: base year 1995
July 1997 to June 1998: base year 1996
July 1998 to April 1999: base year 1997
[4] Accordingly,
although the taxation years under appeal are 1995, 1996 and 1997, the
Appellant's entitlement to the CCTB requires his being the "eligible
individual" (as defined in the ITA) for the relevant periods April
1997 through April 1999.
Subject to addressing the impact of the presumption in favour of the female
parent, the Appellant will be considered the eligible individual if he was the
parent during the relevant periods who primarily fulfilled the responsibility
for the care and upbringing of his son.
[5] The
presumption in favour of the female parent is contained in paragraph (f)
of the definition of "eligible individual" which reads as follows:
122.6 In this subdivision,
. . .
(f) where a qualified
dependant resides with the qualified dependant's female parent, the parent who
primarily fulfils the responsibility for the care and upbringing of the
qualified dependant is presumed to be the female parent, . . .
[6] Paragraph (f) speaks to the case, as in
the case at bar, where there are two persons, both parents of the qualified
dependant, who claim to be the parent who primarily fulfils the responsibility
for the care and upbringing of the qualified dependant. As will be noted later in these Reasons, the presumption does not
apply if both parents have filed a notice claiming the CCTB provided the
two claimants live at different locations. Since that is not the case in this
appeal, the presumption applies.
[7] The
Appellant testified at the hearing that he, not his wife, was the primary
caregiver during the relevant periods. If that is the case, the presumption in
paragraph (f) has been held not to apply. That is, the presumption in
paragraph (f) has been found to be rebuttable. It is rebuttable because it is only a
"presumption" not a deemed fact. Ignoring the Charter issue
then, the Appellant can succeed on his claim to receive the CCTB if he can
establish, on a balance of probability, that he was his son's primary caregiver
during the relevant periods.
[8] To
oppose the Appellant's testimony that he was his son's primary caregiver, the
Respondent called the child's mother who separated from the Appellant at the
end of March 1999. The child's aunt (the mother's sister) was called to
corroborate the mother's testimony.
Was the Appellant the Primary Caregiver
[9] This
is a case of considerable hostility between the Appellant and his former wife.
Each has recast history to best reflect on their own conduct in relation to
their son and to shed the worst possible light on their partner's conduct in
relation to their son. While it is not particularly helpful in my view to
review the testimony of the Appellant and his wife in any detail, an overview
of the evidence is required.
[10] The Appellant was jobless when his son was born in March 1997. He had
lost his job 12 days earlier. He was jobless until sometime after he completed
a four to six month retraining program that ended in or about June 1998. His
testimony was that he looked diligently for work and cared for his son while
his wife was off attending to her business. His wife was a neglectful mother who
had no real relationship with the son. The Appellant tendered evidence as to
his wife's business routine away from home and considerable hearsay evidence
was advanced (letters and affidavits) which taken together describe him as a
loving, caring, attentive father who drove his son to and from daycare and who
had been seen giving lunch to his son, taking him for walks in a stroller and
watching over him. He said he fed, changed and shopped for his son. He said he
attended with his son at doctor's appointments and otherwise took the role of
the parent performing the primary role in the care and upbringing of his son.
He said he cashed in over $30,000.00 of savings to support the family during
his unemployment and used employment insurance benefits for the same purpose.
[11] On
cross-examination, however, he was not very convincing as to his role as a
primary caregiver. He admitted his wife breast fed for three to four months. He
stumbled over meal schedules and baby products and did not know where his son's
health card was kept. He acknowledged that although his wife was away a lot in
the course of her business, both he and his son travelled with her regularly,
at least until the summer of 1998 at about which time the Appellant's wife
began taking some trips without the son. By February 1999 the son was enrolled
in a daycare three times a week and, it would seem was travelling less with his
mother. However, even with the son in daycare, weekends were available for the
child to travel with the mother and much of her travel was on weekends.
[12] While I am
satisfied that the Appellant may have been required to spend more time with his
son from the summer of 1998 through to his separation from his wife in March
1999, I am not satisfied that the increase in his role would have constituted
him the primary caregiver during this period.
[13] The Appellant's wife was a professional dog handler. She showed dogs.
Before shows she would spend all night grooming her dogs. Showing her dogs
required travel and at shows she spent several hours a day handling her dogs
during the course of their being judged. She started back to work only nine
days after her son was born. She testified that until the summer of 1998 the
son travelled with her on all trips. She described the Appellant as a
lazy, cheating, lying, good-for-nothing who never once changed a diaper or fed
their son a meal. She said she paid for all the household expenditures with the
exception of some 10 mortgage payments which she acknowledged her husband made
during the relevant period. The animosity between the Appellant and his former
wife is best demonstrated by an exchange between them on the Appellant's
cross-examination of his former wife wherein they accused each other of tax
evasion. Notwithstanding such hostility, her testimony in respect of the
day-to-day care of her son clearly reflected that she had a much greater role
than the Appellant in this regard.
[14] At the end of the day I would suggest that neither the Appellant nor
his former wife are quite as bad as they would each have me believe. The
Appellant was not as lazy as portrayed by his wife and I accept that he did
help with their son's care and upbringing. The Appellant's sister-in-law who
testified, confirmed this to some extent at least. Although I would not say
that this witness was entirely disinterested, her testimony was clearly more
balanced and she acknowledged that the Appellant did, at least on occasion,
assist in feeding, changing and attending to his son.
[15] On balance, the
testimony of the Appellant that he was the primary caregiver was simply not
credible which is to say that he has not brought forward sufficient evidence to
rebut the presumption in favour of the mother. To the contrary, the evidence
brought forward by the Respondent is sufficient to establish, on a balance of
probability, that the mother was in this case the primary caregiver of the
qualified dependant during the relevant periods.
[16] It is important to underline this finding in the context of the
analysis of the Charter issue raised by the Appellant. The Charter
challenge, as I will elaborate on momentarily, is based on the discriminatory
impact of the presumption in terms of the process that he has been subjected to
by reason only of his gender. The Appellant has been put in the position of
being an appellant for no other reason than he is a male parent. He has been
required to file an Objection and Notice of Appeal to a reassessment. He has
been subject to time limitations, filing fees and other costs. He has been pre-judged
and bears a burden of proof to rebut the presumption in favour of his former
wife – a presumption she enjoys for no other reason than she is a female.
Procedurally, he asserts that the presumption operates or operated in his case
in a discriminatory manner. While the remedy for such discrimination, if
proven, might include or require the striking of the impugned provisions, such
remedy in itself would be of no assistance to the Appellant since, by virtue of
my findings of fact as to which parent was the primary caregiver, he would
still not be entitled to receive the CCTB. Regardless, the Appellant seeks
recognition and redress of the discriminatory aspects and impact of the
impugned provisions.
[17] This raises a question of the jurisdiction of this Court to go beyond a determination of the correctness of a
liability determined on a reassessment. I have determined the correctness of
the liability. Can I do more? The answer to this question requires an analysis
of section 24 of the Charter which reads as follows:
24. (1) Anyone whose rights
or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
Jurisdiction under Section 24 of the Charter
[18] Before considering the question of the scope of this Court's
jurisdiction under section 24 it is necessary to consider the interrelationship
between section 24 of the Charter and section 171 of the ITA
as well as the interrelationship between section 24 of the Charter and
subsection 52(1) of the Constitution Act.
[19] Subsection 52(1) of the Constitution Act provides that the
Constitution "is the supreme law of Canada, and any other law that is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force and effect". The invalidity of a provision that
violates rights guaranteed under the Charter then does not arise from a
declaration of a court but from the operation of subsection 52(1). As stated by
Gonthier J. in Nova Scotia (Workers' Compensation Board) v. Martin at para. 28
"In principle such provision is invalid from the moment it is
enacted" and every level of government including administrative organs of
state may not apply invalid laws. In Schachter v. Canada Lamare J. wrote at
para. 87, page 719, that where section 52 of the Constitution Act
is not engaged, a remedy under section 24 of the Charter may still
be available: "This will be the case where the statute or provision in
question is not in and of itself unconstitutional but some action taken under
it infringes a person's Charter rights." Bringing these principles
together it seems clear that even if the impugned provisions in the case at bar
do not necessarily violate the Charter, it is open for the Appellant to
seek recognition and redress under section 24 if the application of
the impugned provision in his case infringed his Charter rights.
[20] The Respondent does not admit to this position and relies on Keyes
v. Canada (M.N.R.) as
authority for limiting the jurisdiction of this Court not to do more than it is
empowered to do under section 171 of the ITA. Subsection 171(1) of the ITA
provides as follows:
171. (1) The Tax Court
of Canada may dispose of an appeal by
(a) dismissing
it; or
(b) allowing
it and
(i) vacating
the assessment,
(ii) varying
the assessment, or
(iii) referring
the assessment back to the Minister for reconsideration and reassessment.
In general terms this limits the jurisdiction of this Court to a
determination of the correctness of an assessment.
[21] Keyes dealt with a husband's family allowance claim and the
preference given to females under similar provisions as now contained in the
CCTB provisions. Bonner J. of this Court found authority in Mills v. R. to say that although this Court has
jurisdiction to hear Charter challenges it is limited in the disposition
of them by section 171 of the ITA. The task of the Court is to fit the
remedy allowed under section 24 into the statutory scheme of the ITA.
Otherwise, it is suggested in Mills that the legal system would be
turned "upside down".
[22] With respect to the Respondent's position and reliance on Mills,
as applied in Keyes, I do not agree that this Court's recourse under
section 24 is so limited. This is broadly confirmed in Canada v. O'Neill
Motors Ltd.
where at paragraph 10 Linden J. confirmed this Court's jurisdiction under
section 24 to grant a remedy as is appropriate and just.
[23] In O'Neill Motors, Bowman A.C.J. vacated an assessment in
respect of which an illegal search had been conducted. The illegal search
violated the appellant's rights under the Charter and although the
evidence so obtained could, under the Charter, be excluded, Bowman
A.C.J. exercised his authority to invoke subsection 24(1) of the Charter
which allows for any appropriate and just remedy. Arguably, using subsection
24(1) to vacate the assessment offers no precedent for this Court to apply a
remedy beyond one statutorily provided for in section 171 of the ITA
since the remedy actually invoked in that case was one within the scope of that
section. However, in my view, the Federal Court of Appeal's affirmation of
A.C.J. Bowman's decision goes further. It clearly acknowledges "the general
authority given to the Court in subsection 24(1) to grant a remedy as is
appropriate and just" (emphasis added).
[24] Further, I note that the jurisdiction of a statutory court to grant a
remedy under section 24 of the Charter has been more recently dealt with
in R. v. 974649 Ontario Inc. In
that case McLachlin C.J. confirmed the three requirements for a statutory court
to have jurisdiction to grant Charter remedies under section 24 of the Charter.
They are: (1) jurisdiction over the person; (2) jurisdiction over the
subject matter; and (3) jurisdiction to grant the remedy. The jurisdiction issue in that case,
as in the case at bar, concerned the third requirement, namely jurisdiction to
grant the remedy.
[25] McLachlin C.J. adopted a "functional and structural"
approach to implying legislative jurisdiction to grant Charter relief
under section 24.
Under this approach the relevant factors and their relative weight will vary
with the circumstances at hand. A necessary factor to consider in regard to the
function of the Court is any expression of its mandate. A further but different factor to
consider in regard to function is any expression of the type of remedy that it
is authorized to grant.
This Court's mandate is set out in section 12 of the TCCA. This section
grants this Court exclusive original jurisdiction to hear and determine
references and appeals "on matters arising under ... the Income Tax Act".
There is no question that this statement of the Court's mandate is broader than
suggested by section 171. Indeed it supports this Court's general authority to
consider appropriate remedies on a Charter challenge. Further, section
19.2 of the TCCA makes specific reference to constitutional questions
where the validity, applicability or operability of an Act of Parliament or its
regulations is before this Court. As in the case of other superior courts
mandated to hear constitutional questions there is a requirement that the
Attorney Generals be notified. This section of the TCCA clearly
underlines Parliament's intention to embrace this Court as one whose function
is to deal with constitutional issues arising under the ITA including
questions regarding the operation of a provision of the ITA or its Regulations.
[26] The next question then is whether section 171 of the ITA which
limits remedies available in respect of appeals before this Court, can
reasonably be taken as an expression of Parliament to limit the remedies
otherwise available under section 24 of the Charter when a Charter
challenge is before it. While section 171 may appear to be a telling indicator
of this Court's limited function, such appearance, in my view, is misleading
for several reasons. Firstly, it ignores the Court's wider mandate. As well,
the court has express jurisdiction to do more than set out in section 171.
Section 173 affords this Court jurisdiction to hear on joint application
"a question of law, fact or mixed law and fact arising under this Act, in
respect of any assessment, proposed assessment, determination or a proposed
determination". While this appeal is not a section 173 reference on a
question of law, that seems entirely beside the point. The point is that this
Court has on references before it, express statutory jurisdiction to make a
finding of law which would surely include a Charter violation under the ITA
in respect of a determination such as the one being appealed at the case at
bar. To say that such jurisdiction exists without access, as a matter of its
general authority, to a remedy under section 24 of the Charter would be
self-contradictory. Further, I would suggest that the statutory authority in
section 171 is there to recognize a level of expertise and experience with
a subject matter over which it is given exclusive jurisdiction. This
limits the jurisdiction of other Courts. However, to say other courts do not
have authority to consider remedies under section 171 of the ITA is
not to suggest that the Judges of this Court lack the training or experience to
consider appropriate and just remedies under section 24 of the Charter, when
it considers Charter challenges consistent with its mandate. Further
still, statutory authority to grant particular remedies is just one factor to
consider in the overall assessment of the function and structure of the Court.
I would hope that there is little question that this Court having the tools,
facilities, resources and personnel of a superior court of record is
sufficiently equipped functionally and structurally to be recognized as having
jurisdiction under section 24 of the Charter without encumbrance by
virtue of section 171 of the ITA.
It is wholly consistent with this Court's function and processes to recognize
its jurisdiction to employ just and appropriate remedies pursuant to section 24
of the Charter where applying the principles in Schachter as
described above it determines that such remedies are available to an Appellant.
Importantly as well, I note the remarks of Gonthier J. in Nova Scotia
(Workers' Compensation Board) v. Martin:
"... Canadians should be entitled to assert the rights and freedoms that
the Constitution guarantees them in the most accessible forum available,
without the need for parallel proceedings before the courts" (i.e. in the
context of this case - "without the need for parallel proceedings before
another court"). The Appellant in the case at bar should not be required
to conduct this appeal in two forums: one in the Tax Court of Canada (as to his
eligibility status) and one in the Federal Court of Canada (as to his
entitlement to a section 24 remedy).
[27] In my view it is clear that this Court has jurisdiction to hear Charter
questions respecting impugned provisions of the ITA or Regulations
or the manner in which an impugned provision has been applied even under the
informal procedure and the remedy available is that governed by the Charter. Indeed, not only do section 24 of the
Charter and subsection 52(1) of the Constitution Act trump
section 171 of the ITA, they impose an obligation on this Court to
consider the constitutional validity of provisions applied and relied on in an
assessment, reassessment or determination and to either strike an invalid
provision or invoke an appropriate and just remedy under section 24 of the
Charter where impugned provisions are not in and by themselves
unconstitutional but where some action taken under them has infringed on a
person's Charter rights.
[28] Accepting jurisdiction, I reiterate that in considering the Charter
challenge in the context of the case at bar, there are two determinations
required: firstly, whether the impugned provisions of the ITA and Regulations
are invalid pursuant to subsection 52(1) of the Constitution Act which
requires a determination as to whether such provisions in and by themselves
violate the Appellant's rights under the Charter; and, secondly if the
impugned provisions do not in and by themselves violate the Appellant's rights
under the Charter, whether the provisions of the ITA and Regulations
as applied have in an administrative or procedural way violated the Appellant's
rights under the Charter. The Charter question so framed takes on
a life of its own and must be dealt with irrespective of the possibility or
even inevitability that the remedy may not include a favourable judgment for
the Appellant on the tax liability issue before this Court. That I have found
that the Appellant in the case at bar cannot, on the merits of his appeal,
receive the CCTB claimed, does not prevent my addressing the procedural
discrimination complained of. Otherwise such discrimination would always be
ignored in this Court. That the impugned presumption has been found to
correctly reflect the facts of this case, cannot be a bar to examining the Charter
complaint.
[29] Before considering the impugned provisions of the ITA and Regulations
in light of sections 15 and 28 of the Charter and addressing the two
questions raised above, I note as another preliminary point that the enquiry
into the discrimination claim in the case at bar is not foreclosed by the
findings of this Court that the impugned presumption is rebuttable. That the
presumption in favour of the female parent is rebuttable, is not
sufficient to obviate concern over an infringement of a right guaranteed under
the Charter. To suggest otherwise either precludes a determination of
whether there is a procedural problem in this case in the administration of the
subject provisions that infringes on the Charter as alleged by the
Appellant or implicitly accepts that any such apparent infringement does not
ultimately infringe on the Charter. Neither of these results can be
defended.
[30] Support for this position can also be found in the analysis of the majority decision of the Supreme Court of Canada in R.
v. Downey
delivered by Cory J. Although a case dealing with a presumption in the Criminal
Code, impugned as violating paragraph 11(g) of the Charter,
the analysis confirms that presumptions that affect burdens of proof, can
violate a right guaranteed under the Charter. At page 29, summarizing
seven principles dealing with presumptions, Cory J. wrote as
principle III: "Even if a rational connection exists between the
established fact and the fact to be presumed, this would be insufficient to
make valid a presumption requiring the accused to disprove an element of the
offence."
[31] This principle applies in my view to the
impugned provisions in the case at bar which require the Appellant, by virtue
of his gender, to disprove or rebut a presumed fact even if there is a rational
connection between the established facts and the presumed fact. While the burden
of proof and presumption of innocence in criminal cases can be said to be of
greater importance and more worthy of protection, surely presumptions based on
stereotypes affecting civil rights require similar consideration subject to a
possible lowering of the justification bar as circumstances may dictate. Even
more to the point, stereotypical presumptions are surely not less offensive
simply because the person offended can disprove the presumption. The existence
of the presumption is the evil that the Charter seeks to address if,
based on a stereotype, it has given effect to discriminatory treatment. The
question remains one of determining whether the Appellant's Charter
rights have been violated by reason of gender discrimination.
The Charter Challenge – the Statutory
Framework
[32] Preliminary issues aside then, it is necessary in
considering the Charter challenge to first cite two further paragraphs of the ITA,
namely, paragraphs (g) and (h), of the definition of
"eligible individual" contained in section 122.6 of the ITA
and sections 6301 and 6302 of the Regulations:
"eligible individual" in
respect of a qualified dependant at any time means a person who at that time
. . .
and for the purposes of
this definition,
. . .
(g) the
presumption referred to in paragraph (f) does not apply in prescribed
circumstances,
(h) prescribed
factors shall be considered in determining what constitutes care and
upbringing.
6301. (1) For the purposes of
paragraph (g) of the definition of "eligible individual" in section
122.6 of the Act, the presumption referred to in paragraph (f) of that
definition does not apply in the circumstances where
(a) the
female parent of the qualified dependant declares in writing to the Minister
that the male parent, with whom she resides, is the parent of the qualified
dependant who primarily fulfils the responsibility for the care and upbringing
of each of the qualified dependants who reside with both parents;
(b) the
female parent is a qualified dependant of an eligible individual and each of
them files a notice with the Minister under subsection 122.62(1) of the Act in
respect of the same qualified dependant;
(c) there
is more than one female parent of the qualified dependant who resides with the
qualified dependant and each female parent files a notice with the Minister
under subsection 122.62(1) of the Act in respect of the qualified dependant; or
(d) more
than one notice is filed with the Minister under subsection 122.62(1) of the
Act in respect of the same qualified dependant who resides with each of the
persons filing the notices if such persons live at different locations.
6302. For the purposes of paragraph
(h) of the definition of "eligible individual" in section
122.6 of the Act, the following factors are to be considered in determining
what constitutes care and upbringing of a qualified dependant:
(a) the
supervision of the daily activities and needs of the qualified dependant;
(b) the
maintenance of a secure environment in which the qualified dependant resides;
(c) the
arrangement of, and transportation to, medical care at regular intervals and as
required for the qualified dependant;
(d) the
arrangement of, participation in, and transportation to, educational,
recreational, athletic or similar activities in respect of the qualified
dependant;
(e) the
attendance to the needs of the qualified dependant when the qualified dependant
is ill or otherwise in need of the attendance of another person;
(f) the
attendance to the hygienic needs of the qualified dependant on a regular basis;
(g) the
provision, generally, of guidance and companionship to the qualified dependant;
and
(h) the
existence of a court order in respect of the qualified dependant that is valid
in the jurisdiction in which the qualified dependant resides.
[33] The sections of the Charter upon which the Appellant relies is
as follows:
15. (1) Every individual is equal
before and under the law and has the right to the equal protection 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) Subsection (1) does not
preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of
race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
. . .
28. Notwithstanding anything in
this Charter, the rights and freedoms referred to in it are guaranteed
equally to male and female persons.
The Issue Reframed in Light of the
Charter Challenge
[34] It is helpful at this point to review the assessment,
objection and confirmation
process that faced the Appellant prior to filing his Notice of Appeal.
[35] The Appellant first applied for the CCTB in April 2000. The
application shows his status as single which was the case by then. It is not
clear from the application what period or base taxation year was covered but in
August 2000 he requested in writing that his CCTB claim be processed
retroactively to March 1997. No elaboration as to his marital status
between March 1997 and March 1999 was provided. The Respondent suggested at the
hearing that it was misled by the Appellant not having acknowledged that he was
married and living with his wife during that period, the relevant period. The
Appellant denies that the misrepresentation was intentional however I have
little hesitation in suggesting that he would have known or ought to have known
that in refraining from making the distinction clear, he was misrepresenting
facts that bore to his entitlement. He knew his wife had not filed tax returns
or made CCTB claims for the relevant periods when they separated in March 1999.
Given my impression of the Appellant and his former wife, I can readily see how
hostilities between them might have contributed to an attitude that could
result in either of them misleading the CCRA. However, while I make these
observations in deference to the Respondent's position, I find them of no
relevance. They have no bearing on the question of which parent actually was
the primary caregiver and in respect of the Charter challenge,
they have no bearing on the principle question that I will ultimately have to
consider which is whether the CCRA relied on any factors that bore to the best
interests of the qualified dependant in invoking the presumption in favour of
the female parent in this case.
[36] In January 2001, presumably after having allowed the Appellant's
claim, the CCRA questioned the Appellant's claim and sent him a questionnaire.
The response to the questionnaire accurately described the Appellant's marital
status during the relevant periods and that he was living in the same house
with his then spouse and their son. Although not in evidence, it seems safe to
assume that the CCRA was, after initially allowing the Appellant's claim for
the CCTB for the relevant periods, facing a competing claim by the Appellant's
former spouse by January 2001. As well the CCRA was aware that the Appellant's
former wife had not declared in writing that the male parent (the Appellant)
was the parent who primarily fulfilled the responsibility for the care and
upbringing of their son as required under paragraph (a) of Regulation 6301
to negate the presumption, in favour of the female parent, in paragraph (f)
of the definition of "eligible individual". Accordingly, the
Respondent relied on the presumption and made its re-determination against the
Appellant. The Appellant admitted he made no attempt to seek his former wife's
consent to his receiving the CCTB but asserts that his having to ask for his
wife's declaration is an affront to his dignity as a person guaranteed equal
rights under the Charter.
[37] I note that one might assume that the CCRA sent the Appellant the
questionnaire to help make an assessment, under section 6302 of the Regulations,
of the Appellant's claim to have been the primary caregiver to his son during
the relevant periods. However the Respondent has placed no reliance on the
questionnaire. Indeed, the Respondent placed no reliance on any factual
findings it may have made in respect of the Appellant's spouse being the
primary caregiver of the couple's son. This is made abundantly clear in the
Notice of Confirmation, which only referred to the presumption in favour of the
female parent making no reference to Regulation 6302, and in the Reply, which repeatedly
refers to the initial determination being based on incorrect information (that
the Appellant was not during the relevant periods married and living with his
spouse) omitting any assumptions or assertions that the female parent was in
fact the primary caregiver during the relevant periods. But for sending a
questionnaire which was seemingly ignored, all I can see is that the
re-determination, Confirmation and Reply are a lazy reliance on the presumption
in favour of the female. The Reply does cite Regulation 6302 but offers
no hint as to its relevance in the pre-hearing context. Certainly the
Respondent's counsel was aware of its relevance and brought witnesses to
support its application but that does not address the problem of the use of the
impugned presumption before the hearing that made the Appellant the appellant.
It seems clear, based on the Notice of Confirmation and the Reply, that the
presumption in favour of the female parent alone has resulted in the denial of
the CCTB and in the Appellant having to launch this appeal.
[38] It is in this context that I will now consider the Appellant's Charter
challenge.
Charter Analysis
[39] In Law v. Canada,
three broad enquiries are to be considered in section 15 Charter cases. Summarily
they are:
1. Has a distinction
been drawn between the Appellant and others on the basis of a personal
characteristic (or fail to take into account an existing disadvantaged position
resulting in substantial differential treatment on the basis of a personal
characteristic)?
2. If there is
different or distinctive treatment, is the ground for that distinction
enumerated, or analogous to a ground enumerated, in subsection 15(1) of the Charter?
3. If so, does the
treatment discriminate by imposing a burden upon or withholding a benefit from
the Appellant in a manner reflective of stereotypical applications of presumed
personal characteristics or in a manner which has the effect of perpetrating or
promoting the view that the Appellant is less capable or less worthy of
recognition or value or not equally deserving of concern, respect and
consideration?
[40] There can be no question that the Appellant is treated differently
under the impugned provisions of the ITA and Regulations.
Further, there can be no question that the basis for the distinction is a
personal characteristic: he is the male parent of the qualified dependant as
opposed to the female parent and is treated differently for that reason alone.
The Notice of Confirmation and Reply relied entirely on the presumption under
review. There is differential treatment by imposing the burden of an appeal
process on the Appellant simply on the basis of gender. Further, the female
parent is empowered to declare the male parent as the primary caregiver and to
effectively make the initial determination of the male parent’s entitlement to
receive the CCTB.
[41] Having determined that the differential treatment suffered/experienced
by the Appellant is based solely on his sex, which is one of the grounds
enumerated in subsection 15(1) of the Charter, it is necessary to go on
to the third enquiry.
[42] The third enquiry
under the Law test asks whether the differential treatment was
discriminatory. In the present case, the question may be stated as follows:
Did the differential treatment
discriminate by imposing a burden upon or withholding a benefit from the
Appellant in a manner that,
(a) is reflective of
stereotypical applications of presumed personal characteristics of male and
female parents, or
(b) has the effect of
perpetrating the view that the Appellant as a male is less capable or less
worthy of recognition or value as a parent, or promoting the view that he is
not deserving of equal respect and consideration in the determination of his
role as a parent?
[43] The analysis of such question must consider whether the purpose of the
Charter is served by finding that the differential treatment in this
case is a violation of the Appellant's rights or whether there is a contextual
justification for the existence of the impugned provisions. "Equality
analysis under the Charter must be purposive and contextual". Differential treatment "may be
found not to engage the purpose of the Charter guarantee" or it may
"not have the effect of imposing a real disadvantage in the social and
political context of the claim".
[44] An example, in the context of the case at bar, of differential
treatment not "engaging" the Charter is found in the case of Weatherall
v. Canada.
La Forrest J. at page 877 remarked that "Given the historical,
biological and sociological differences between men and women, equality does
not demand" equal search practices of male and female prison inmates. He
found that there was a reality to the historical trend of violence by men
against women not matched by any comparable trend of women as violent
aggressors against men. Cross-gender searches were more threatening to
historically disadvantaged women so the different treatment did not offend the Charter
and was in any event saved by section 1.
[45] This argument may seem appropriate for the present case. Undoubtedly
there is an historical concordance, based on sociological patterns, between the
presumption of the female's parenting role and the role actually played by
females. However unlike matters involving sexual aggression as considered in Weatherall,
there is little or no biological basis for the impugned provision in the case
at bar. For example the presumption favouring females in the parenting role is
not based on biological traits attributable to birth mothers. This is evident
in paragraph (c) of section 6301 of the Regulations which
contemplates a situation where there are two female parents caring for a child.
Even though one of the female parents may be the birth mother, facts not
presumptions will determine the entitlement to the CCTB. This suggests that the
concordance between the presumption of the female's parenting role and the role
actually played by females may be based solely on historical sociological
patterns or custom.
Such concordance is a factor in determining whether the impugned provisions are
substantively discriminatory although it might also be the very evil the Charter
is meant to combat. A purposive and contextual analysis will assist in the
consideration of this question.
[46] The purpose of the Charter has been described in several cases
in several different ways.
The protection of human dignity however seems to be the most common theme of
purposive statements. Indeed in Miron, the overarching purpose of
section 15 is stated as being "to prevent the violation of human dignity
and freedom by imposing limitations, disadvantages or burdens through the
stereotypical application of presumed group characteristics rather than on the
basis of merit, capacity, or circumstance". Finding, in conflict, with such
purpose, that legislative provisions reflect and reinforce existing inaccurate
understandings of the merits, capabilities and worth of a particular person or
group within Canadian society, resulting in further stigmatization of that
person or the members of the group or otherwise in their unfair treatment, was
highlighted in Law as the most prevalent reason that a given legislative
provision may be found to infringe subsection 15(1).
[47] The Appellant asserts his human dignity is harmed by the lack of equal
consideration he is exposed to as a male parent under the impugned provisions
and that his capabilities as a parent in Canadian society are prejudged on the
basis of presumed characteristics, not merit. As stated in Law:
Human dignity is harmed when
individuals and groups are marginalized, ignored, or devalued, and is enhanced
when laws recognize the full place of all individuals and groups within
Canadian society. Human dignity within the meaning of the equality guarantee
does not relate to the status or position of an individual in society per
se, but rather concerns the manner in which a person legitimately feels
when confronted with a particular law. Does the law treat him or her unfairly,
taking into account all of the circumstances regarding the individuals affected
and excluded by the law?
[48] Both subjectively and objectively, the
assertion that the Appellant has been unfairly treated and as a result has been
marginalized and devalued, is self-evident. In respect of the appeal process,
he has had to appeal a determination of his eligible status which was made
without regard to personal merit. Legislatively his role as a parent has been
stereotypically marginalized.
[49] I note here that I agree with the Appellant
that his human dignity has been harmed in spite of arguments to the contrary
made by Respondent's counsel. The Respondent argues
that because the primary caregiver presumption is rebuttable, it does not
constitute a complete exclusion of fathers from the benefit at issue. It does
not have the hallmarks of arbitrariness and complete exclusion that was found
to offend the Charter in Trociuk v. B.C. (A.G.). The Respondent
then says that the government can therefore suggest that unlike the situation
in Trociuk, the measure in question does not send the message that a
father's relationship with his children is less worthy of respect than that
between a mother and her children. Indeed, the Respondent says this should be
the central message of its argument.
[50] I am not persuaded by this message. In my
view, a reasonable person in the Appellant's circumstances would perceive that
his dignity has been infringed by the presumption even though it is rebuttable.
The Court in Trociuk was faced with impugned legislative provisions that
afforded fathers no recourse to a mother's right to refuse to acknowledge a
father for the purposes of naming a baby and the absence of recourse was a
factor considered. However, I cannot find or accept that the decision in Trociuk
is authority to say that recourse, such as afforded by a rebuttable
presumption, is always a sufficient answer to a discrimination claim. Of more
importance is that the Court in Trociuk recognized that both parents
have a deep personal interest in fostering the growth of their children and
acknowledged the centrality of parent/child relationships to an individual's
identity.
To perceive the mother as having a greater role in fostering the growth of
children reflects stereotypical thinking both as to male and female parental
roles. As noted earlier in these Reasons, a presumption based on a stereotype
that violates a right under the Charter cannot be saved on the basis
that it is rebuttable. Being called upon to seek a direction from the female
parent or to rebut the presumption in favour of the female parent reflects an
attitude that fathers are less worthy of consideration in respect of their
parenting role than females. This is demeaning to male parents and in a
backhanded way supports the stereotypical view that women by their nature are
better suited to be at home with the children. In a society that promotes
paternity leave to enable mothers to go back to work, the impugned provisions
are not only non-progressive, but are sufficiently out of sync as to support
the finding that a reasonable person would find them demeaning regardless of
the rebuttal recourse afforded a complainant. A purposive analysis does not save the impugned
provisions in my view.
[51] This takes me to a contextual or
circumstantial justification analysis upon which the Respondent also places
reliance in defending the impugned provisions. Law identifies four
contextual factors that assist in determining whether a legislative provision
violates subsection 15(1) in a substantive sense. The four factors are: a)
whether the group at issue experienced a pre-existing disadvantage; b) the
relationship between the grounds and the claimant's characteristics; c) the
ameliorative purpose or effects of the impugned law upon a more disadvantaged
group; and d) the nature and scope of the interest affected by the impugned
law.
[52] In a broad sense these factors are aimed at determining whether the
impugned provisions "... have the effect of imposing a real disadvantage
in the social and political context of the claim".
[53] The first factor is a non-factor in this case. That persons seeking
protection of their rights under the Charter are not a disadvantaged
group is not a relevant factor. That a provision may be saved by affording
protection to a disadvantaged group does not deny advantaged persons protection
under the Charter. This was clearly enunciated in Trociuk.
[54] The second factor is the concordance between
the grounds and the claimant's characteristics. From the Appellant's
perspective, the impugned presumption does not concord with the growing
realities of our society which recognize and embrace stay-at-home dads. There can be no doubt that times are
changing and that more men are taking on the responsibility of being the
caregivers for children. The statistics still show, however, that
overwhelmingly, women are in fact the caregivers. Arguably then the presumption accords
with societal realities. Would this, in the perception
of a reasonable person in the claimant's circumstances, save an otherwise
discriminatory provision? Given that it promotes a stereotype of women that is
out of sync with growing societal trends, there is clearly reason to suggest
that the answer should be "no". However, that is before considering
any ameliorative aspects of the impugned provision, which taken together with
concordance may suggest that the interests of the subject social program for children
(the CCTB) warrant greater protection.
[55] The Respondent, viewing the concordance factor
from the female's perspective, argues that the impugned provisions accommodate
the needs, capacities and circumstances of women who are by and large the primary
caregivers in society. As noted, statistics tendered at trial support this
assertion as to "circumstances". As to the "needs" and
"capacities" of women, no evidence was tendered in respect of these
elusive concepts.
Needs and capacities have clear relevance in the context of the handicapped or
other groups having physical, emotional or mental needs or incapacities but in
the context of gender, surely a line must be drawn between concordance as a
justification for gender distinctions and stereotypical role-casting. The
manner in which statistical realities are brought to bare in this case is
respectful of neither a man's value as a human being performing a most basic
role in our society nor of a women's capacity outside the home. There is little
diminishment of these slights in the recognition of the concordance of females
and persons acting as primary caregivers of children in Canadian homes. In any
event, to the extent that needs and capacities are relevant in a contextual or
circumstantial analysis, they are better considered under the analysis of the
third factor dealing with ameliorative purpose.
[56] The third factor is where there is an ameliorative
purpose or effect in respect of a more disadvantaged person or group. An
ameliorative purpose or effect will have impact in determining whether the
impugned provisions are discriminatory in the social and political context of
the Charter. That is, an ameliorative purpose is less likely to violate
the dignity of a more advantaged person or group. The focus here is to protect
the vulnerable and in particular the historically vulnerable. Such focus
directs the Court to take into account whether the impugned provisions have a
broadly ameliorative purpose that is consistent with the equality values
enshrined in subsection 15(1) of the Charter. That the
ameliorative purpose must be consistent with enshrined equality values suggests
that there is a difference between legislation that takes into account the
actual needs and circumstances of one group in a manner that respects their
value so as to diminish the discriminatory effect on another group and
legislation that simply reflects and encourages stereotypical thinking. Such
difference must be kept in mind in this part of the analysis.
[57] While the purpose of the CCTB is to benefit the
child, it does favour the mother, so it seems necessary that an ameliorative
purpose of the impugned provisions be considered from both the perspective of
the mother and the child as done in Trociuk. I will deal firstly with considering
mothers or females as the historically disadvantaged group who are assisted by
the impugned provisions.
[58] While little evidence has been tendered at
the hearing to support or challenge a finding in respect of an ameliorative
purpose or effect in respect of this group, I accept the likelihood of both
such purpose and effect. Doubtless, women have suffered historical hardships in
the workplace and societal pressure to stay at home and as a result have less
financial means to support their children. Doubtless, women have suffered
historical hardships as dependants of their male partners. A government support
payment such as the CCTB being directed to the female parent in low-income
families can be seen as ameliorating these historical hardships. Presumably
there is some reality to the notion that where the parents and child live under
one roof as a family (which is the limited case to which impugned provisions
apply), paying the female will ameliorate her dependence in a great number of
cases and perhaps, in some regrettable circumstances, may actually be the only
way to ensure that the payments will be applied to the benefit of the child. If the impugned provisions are attempting
to recognize and ameliorate, in a non‑pejorative or non-stigmatizing way,
such reality in Canadian families, arguably at least, they should not
reasonably be seen as attacking the dignity of men or women. That is, it may not be reasonable to
find that the impugned provisions are substantively discriminatory.
[61] The Respondent acknowledges that in fact the CCTB exists for the
benefit of the child – not for the parents. In Cabot Rip T.C.J. provided the following
useful statement of the objectives underlying the CCTB at page 2900:
The child tax benefit was
introduced in 1993 to replace the family allowances, the tax credit for
dependants under 18 years of age and the refundable child tax credit with a
single non-taxable monthly payment made to the custodial parent of the child. The child tax benefit is
to benefit the child. The child tax benefit provides the parent who primarily
fulfils the responsibility for the care and upbringing of the child with funds
to bring up the children. [emphasis added]
[62] If the focus of the
CCTB provisions is to benefit the child by giving the tax refund credit to the
parent who is actually spending the money for the benefit of the child, the presumption in favour of the female might simply serve to
expedite the issuance of funds to the parent who statistically plays that role
in the large majority of Canadian families. Litigating over which parent gets the CCTB might
mean that neither parent would get it without substantial delay – to the
detriment of the child. Any presumption that expedites the issuance of a cheque
might be said to be justified and not demeaning. That is, expediting CCTB payments for the benefit of the child is a worthy objective and, if the purpose of the impugned
provisions is to ameliorate the plight of disadvantaged children in lower income
families, then a presumption made to expedite the payments and enhance the
efficiency of the provision of childcare benefits should not be reasonably seen
as pejorative or stigmatizing or demeaning to the human dignity of male
parents.
[63] However, once
again, while an ameliorative purpose might reasonably be expected to diminish
the discriminatory aspect of impugned legislation, such diminishment should not
be the basis or justification for legislation that advances stereotypical
thinking particularly where non-discriminatory options might be available.
Revised CCTB provisions might leave the decision as to who is entitled to
payments to the agreement of the parties or to a family court or where there is
no timely agreement or court order, payments to parents living together might
be made, as noted above, to the parent with the lower earned income on the
basis of a rebuttable presumption that that parent is engaging in more
"caring labour".
[64] While such
revisions to the CCTB regime would be Parliament's role, not that of the
judiciary, recognition of non-discriminatory alternatives is a factor in
considering justification for a discriminatory provision.
[65] The fourth factor to
be considered is the nature and scope of the interest affected. In general, the more severe and localized the
consequences of the legislation for the affected group, the more likely that
the allegations of discrimination are well-founded.
[66] Admittedly the
scope of the discriminatory aspects of the impugned provisions is limited.
Families eligible for the CCTB living under one roof who would fight over the
eligibility as between mother and father might, practically speaking, be a very
limited group. That is, while there is an element of this case that suggests
that the actual substantive discrimination imposed by the impugned provisions
is so de minimis in both scope and nature as not to warrant judicial
interference, I have a contrary view. The statistics tendered at trial show
that there are a material number of stay-at-home dads in Canadian society and
that the trend for men to stay at home and care for the children is growing. In
this context the Appellant properly points out that even the most reasonable
stay-at-home dad with a most reasonable female partner would be justified in
finding it offensive that the presumption operates against him unless the
female directs the CCTB payment to him. There is no equal footing in the
operation of the presumption.
CONCLUSIONS
[67] Having considered the
factors in Law, I must now determine as stated earlier in these reasons under the heading
"Jurisdiction Under Section 24 of the Charter", whether the impugned
provisions of the ITA and Regulations are invalid pursuant to
subsection 52(1) of the Constitution Act. This requires a determination
as to whether such provisions in and by themselves violate the Appellant's
rights under the Charter.
[68] I am unconvinced that the impugned provision of the ITA, namely
paragraph (f) of the definition of "eligible individual" in
section 122.6, is, in and by itself, unconstitutional. Simply put, I am
unconvinced that there may never be circumstances where it will be in the best
interests of a child to invoke the presumption in favour of the female
contained in that paragraph. I have genuine concerns
that to ignore statistical realities and the possible need in low-income
families to recognize the female parent as being the parent who should be the
recipient of the CCTB, may in some cases adversely affect children. That is,
while I am uncomfortable with accepting that each of concordance and
ameliorative impact are alone compelling reasons to tolerate the discriminatory
impact of the impugned provisions, when taken together I am compelled to say
that a balance in favour of the best interests of children must be given effect
to. A small risk that children will be adversely affected is justification
enough not to strike the impugned provisions. Under the doctrine of
proportionality the interests of children prevail. Accordingly, while I am not
swayed from my finding that there has been substantive discrimination in the
employment of the impugned provisions in the case at bar, I do not find
them in and of themselves unconstitutional or invalid under subsection 52(1) of
the Constitution Act. It is the action taken under them that has in this
case infringed on the Appellant's Charter rights, namely, the employment
of the presumption without having considered whether the employment was in the
best interests of the child.
[69] Put another way, being unconvinced that safeguarding the needs of
children might, in some cases, leave the Minister and the CRA no choice but to
invoke the presumption in favour of a female parent, I am unable to accept that
striking the impugned provision of the ITA effects a proper balance of
competing interests. That being the case, I cannot punish the Minister for not
meeting a burden of proof as to a justification for this impugned provision of
the ITA by invoking judicial authority to strike it. It is enough that I
am satisfied that he and the officials of the CRA may in some circumstances
reasonably see that the best interests of a child are best served by
application of the presumption in favour of the female. The problem in the case
at bar is that the best interests of the child was not a factor in relying on
the presumption. Indeed, not only do I have no evidence that the best interests
of the child were ever considered in this case but the record is clear that the
interests of the child were not a factor in such reliance. It is this
unjustified, blind reliance on the presumption that has violated the section 15
Charter rights of the Appellant. Such violation does not engage
subsection 52(1) of the Constitution Act but under the principles set
out in Schachter, engages the Charter remedies set out in section
24 – remedies consistent with this Court's mandate but beyond the narrow limits
of section 171 of the ITA.
[70] I would note as well, although it does not seem necessary to do so,
that I believe it may be appropriate in cases such as these to go directly to Charter
remedies under section 24 without striking an impugned provision even if such
provision in and by itself violates rights guaranteed under section 15 of the Charter.
This, perhaps, is a bold statement in light of high court findings that
provisions that violate Charter rights are invalid from the moment that
they are enacted. However, this is a statement of law "in principle"
as formulated by Gonthier J. in Nova Scotia (Workers' Compensation
Board). Some circumstances might demand that acknowledgement of an
invalidity must be dealt with differently. A declaration of invalidity might be
suspended to avoid chaos or excessive judicial intervention or to afford
Parliament an opportunity to revisit an impugned provision. "Suspension"
is itself an exception to finding that an invalid law is invalid from the
moment it is passed. Similarly, constitutional exceptions have been created
which would find an impugned provision invalid but only in their application to
certain groups so as not to declare such provision unconstitutional or invalid
for all purposes.
In the case at bar I might have tried to justify a decision not to strike the
impugned paragraph of the ITA using the theory of the constitutional
exception doctrine while addressing the discrimination under section 24 of the Charter.
I might have said I will read down the impugned provision or read in a
requirement to ensure that it would apply only in limited circumstances –
justifiable circumstances such as are in the best interests of the child.
Failure to apply the impugned provision in the appropriate circumstances could
then be addressed under section 24 of the Charter. However, regardless
how I frame my finding, it is sufficient to say that the impugned provision of
the ITA is not invalid if applied reasonably in the best interests of a
child.
[71] The Appellant's rights then under section 15 of the Charter
have been violated in the case at bar in that the presumption in favour of the
female parent was not invoked, overtly or otherwise, on the basis
that it was reasonable to invoke it in the best interests of the child. The
remedy for such violation lies in section 24 of the Charter.
[72] I note that the foregoing remarks are limited
to paragraph (f) of the definition of "eligible individual" in
section 122.6 of the ITA which is the paragraph that provides for
the presumption in favour of the female parent. While the need for section 6301
of the Regulations, which under the authority of paragraph (g) of
the definition of "eligible individual" prescribes circumstances when
the presumption is not to apply, seems doubtful if the only non-offensive use
of the presumption is when there are reasonable grounds to believe its use is
in the best interests of the child, I will not strike either paragraph (g)
or section 6301 of the Regulations. I have had no submissions on the
point in terms of the possible legislative gaps and associated problems that
would be created by striking them. While I see no gaps or such problems,
striking these impugned provisions or even suspending a declaration of their
invalidity pending further submissions or Parliamentary review does not seem
necessary at this time. The Appellant’s complaint can be addressed more simply
by fashioning a remedy under section 24 of the Charter for the violation
to his rights as described above.
[73] Remedies under section 24 of the Charter can be fashioned to
meet the circumstances of the complaint. That is, Parliament
has invited the Courts to impose appropriate and just remedies as the
circumstances require. Justice McIntyre in Mills stated at pp. 965‑6:
It is difficult to imagine language which could give
the court a wider and less fettered discretion — the circumstances will be
infinitely variable from case to case and the remedy will vary with the
circumstances.
[74] At paragraph 47:02 of Jamal and Taylor
"The Charter of Rights in Litigation", the authors comment that there
are remedies yet to be considered such as compensatory damages for a rights
violation and remedies seldom considered such as mandatory orders against
government. While the Appellant's human dignity, offended by the impugned
provisions as applied in the case at bar, cannot be bought with compensatory
damages, some financial redress for such damage in recognition of the violation
seems both appropriate and just. As well, the process to which the Appellant
was subjected as a result of the discriminatory action against him caused him
real damage in terms of time, energy and monies spent. The Appellant has been
required to object to and appeal an assessment based solely on his gender. He
has as well, but for a remedy dictating otherwise, been saddled with the burden
of proof to rebut the presumption contained in the impugned provisions.
[75] Accordingly, in broad terms, the remedial
action I would embrace at this time on the facts and submissions before me is
as follows: On an appeal of a determination or re-determination of
"eligible individual" which has been made solely in reliance on the
presumption in favour of the female parent without reasonable grounds to
believe its use is in the best interests of the child, the qualified dependant,
the Court shall determine on a balance of probability which parent has
primarily fulfilled the responsibility for the care and upbringing of the
qualified dependant and it is open to the Court in such case to award
compensatory damages to the male parent as appropriate in the circumstances.
Where the presumption in favour of the female parent has been employed based on
facts or assumed facts reasonably asserted that the female is the parent who
has primarily fulfilled the responsibility for the care and upbringing of the
qualified dependant or where it has been employed on the basis of there being reasonable
grounds to believe its use is in the best interests of the qualified dependant,
then the presumption remains rebuttable.
[76] I stress that I have not embraced a remedy
that would impose a burden of proof on either the male or female except in the
circumstances where the presumption remains rebuttable as described above. In
other cases, like the one at bar, the proceedings before this Court must be
along the lines of a request for a factual determination as provided in section
174 of the ITA. That section allows for this Court to determine a
question of fact on a binding basis in respect of all taxpayers concerned. The
proceedings should be uncluttered by burden of proof issues. Putting the burden
of proof on the Respondent may have the affect of putting it effectively on the
female parent. Indeed, the Respondent argued that without the presumption,
women, who in the majority of cases are the primary caregivers to children in
two-parent families, would face a disproportionate burden in having to prove,
in situations where there may or may not be significant evidence of this fact,
that they carry out this role within the family in order to receive the CCTB. I
agree that any remedy addressing the impugned provisions cannot transfer the
procedural discrimination complained of in this case from males to females. This
is not my intent. I note here as well that while I intend the direction in this
paragraph to be mandatory in respect of an appeal before this Court, there is
nothing to prevent the CCRA from seeking on its own initiative, an Order under
section 174 of the ITA prior to an appeal being launched. Of
course, the problem disappears if the determination or re‑determination
of an "eligible individual" is made on the basis of facts discovered
on inquiry or reasonably assumed after consideration of relevant factors such
as those set out in section 6302 of the Regulations.
[77] I acknowledge that reliance on section 6302 of the Regulations
or on the Court for a determination of an "eligible individual" might
slow down the CCTB payments in some cases. While this
is a problem it is not likely one that will arise frequently. It seems better
to put emphasis on the infrequency in terms of the CRA having to do some
expedient work than putting emphasis on it to justify the discriminatory
application of the subject provisions.
[78] Further, to avert assertions of discrimination in the course of making
an eligible status determination, it seems essential that the CRA adopt
practices that are more gender-neutral than (but within the scope of) those
contemplated by the existing provisions. For example, the
use of a CCTB application directing the recipient of the CCTB signed by both
parents would be within the scope of the existing Regulations and would
obviate concerns that it is demeaning to seek the females’ direction. While I
choose not to impose such administrative practice on the CRA under the authority of section 24 of the Charter,
I note that if the CRA cannot embrace gender-neutral practices such as this, it
seems inevitable that further complaints will be forthcoming. Short of
legislative reform or an appellant Court's direction, I
dare say this Court may yet strike the impugned provisions if they cannot be
saved under subsection 15(2) or section 1 of the Charter on more convincing submissions.
Otherwise, the remedy granted in this case will presumably stand for future
cases. As to legislative reform, I am hopeful that
Parliament will revisit the impugned provisions to obviate the need for any
further judicial consideration of them. If the judiciary is to defer to Parliament, as I am
doing, Parliament should give every sign to the judiciary that it will put its
mind to reacting to the concerns of the judiciary.
[79] At this point I note
that it is not necessary to consider the Appellant's Charter challenge
under section 28 which reads as follows:
28. Notwithstanding anything in this Charter,
the rights and freedoms referred to in it are guaranteed equally to male and
female persons.
[80] I do note however
that I agree with the submissions of counsel for the Respondent on section 28. It is not intended to create a
separate equality rights regime with respect to discrimination on the basis of
sex. Rather, it is intended to ensure that all Charter provisions are
applied without discrimination between the sexes in accordance with section 15
of the Charter.
[81] To conclude, I have determined that the Appellant was not an eligible
individual for the purposes of the CCTB provisions under the ITA during
the relevant periods but that contrary to his rights guaranteed under the Charter,
the Appellant has on the basis of his gender alone been put to time and expense
and the indignity of an appeal by the employment of the presumption in favour
of the female parent contained in the CCTB provisions of the ITA without
consideration of the best interests of the qualified dependant. Accordingly,
the Appellant is not entitled to the CCTB for the relevant periods but is
awarded the amount of $1,000.00 as compensatory damages, including costs, in
respect of the violation of his Charter rights, such amount to be paid
by the Respondent forthwith. In awarding such amount I have taken into
consideration all the factual circumstances of the case as generally set out in
these Reasons.
Signed at Ottawa, Canada, this 4th day of
November 2004.
Hershfield
J.
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