O’Connor
J.T.C.C.:—
This
appeal
was
heard
in
Calgary,
Alberta
on
February
6,
1995,
pursuant
to
the
informal
procedure
of
this
Court.
Procedural
difficulties
The
respondent’s
reply
to
the
notice
of
appeal
erroneously
states
that
this
appeal
relates
to
the
appellant’s
claim
for
a
child
tax
benefit
for
1993.
At
the
hearing,
counsel
for
the
Minister
of
National
Revenue
(“Minister”)
and
the
appellant
agreed
that
what
really
was
to
be
decided
was
whether
the
appellant
was
entitled
to
a
child
tax
credit
for
the
1992
year
and
the
hearing
proceeded
on
that
basis.
Technically
this
was
acceptable
because
the
Minister
did
issue
a
notice
of
assessment
dated
June
4,
1993
denying
the
child
tax
credit
for
1992
and
the
appellant
filed
a
written
notice
of
objection
for
1992
and
(future
years)
on
June
22,
1993.
Counsel
for
the
respondent
submitted
that
the
Minister
failed
to
consider
this
objection
and
that
the
appellant
was
thus
entitled
to
file
an
appeal
to
this
Court
pursuant
to
paragraph
169(l)(b)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
“Act”).
As
to
the
child
tax
benefit
for
1993
and
1994,
counsel
for
the
Minister
and
the
appellant
acknowledged
that
the
1993
and
1994
years
were
not
before
the
Court.
Facts
The
appellant
and
his
former
spouse,
Kathryn
Mary
Metz,
separated
in
March
1991
and
were
divorced
in
December
1991.
Their
marriage
produced
one
child,
Keegan,
who
was
born
September
16,
1988.
It
was
very
apparent
at
the
hearing
that
the
appellant,
after
the
separation/divorce,
remained
an
extremely
devoted
father.
This
is
also
reflected
in
the
minutes
of
settlement
(Exhibit
A-l)
entered
into
on
December
13,
1991
shortly
prior
to
the
actual
divorce.
These
minutes
provided,
inter
alia,
as
follows:
3(a)
The
wife
and
husband
shall
have
interim
joint
co-parenting
responsibility
of
the
child
of
the
marriage,
with
the
residency
of
the
child
to
be
shared.
(b)
The
parties
intention
in
agreeing
to
co-parenting
is
that
each
of
them
shall
continue
having
a
full
active
role
in
providing
a
sound,
moral,
social,
economic
and
educational
environment
for
the
child....
(f)
Each
of
the
parties
shall
exert
every
effort
to
maintain
free
access
and
unhampered
contact
between
the
child
and
the
other
party,
and
to
foster
a
feeling
of
affection
between
the
child
and
the
other
parent....
4(a)
The
parties
agree
to
alternate
weekly
access
for
the
child,
such
weekly
times
to
commence
on
the
opening
of
the
child’s
daycare
on
Monday
morning,
and
alternate
each
Monday
morning
thereafter
for
one
full
week.
The
husband
shall
have
the
child
under
his
care
and
control
commencing
Monday
November
25,
1991,
for
one
consecutive
week
and
every
alternate
week
thereafter.
The
wife
shall
have
the
care
and
control
of
the
child
commencing
Monday,
December
2,
1991
at
the
commencement
of
daycare
for
one
consecutive
week,
and
every
alternate
week
thereafter.
These
weeks
will
only
be
adjusted
as
hereinafter
set
out
in
this
agreement.
5.
The
parties
will
be
jointly
responsible
for
the
support
of
the
child
and
each
agrees
to
pay
one-half
of
the
daycare
cost
during
the
currency
of
this
agreement,
commencing
on
December
1,
1991
and
the
first
day
of
each
and
every
month
thereafter,
until
further
order
of
the
Court.
In
his
income
tax
return
for
the
1992
year,
the
appellant
claimed
a
child
tax
credit
with
respect
to
his
son,
Keegan.
By
notice
of
assessment
dated
June
4,
1993
the
Minister
of
National
Revenue
(“Minister”)
disallowed
that
credit
stating
that
the
appellant
“did
not
have
any
children
eligible
for
this
credit
in
1992”.
The
credit
apparently
had
been
taken
by
the
appellant’s
former
spouse.
The
appellant
contended
that
since
he
and
his
former
spouse
had
joint
and
equal
responsibility
for
the
custody
and
support
of
Keegan,
the
child
tax
credit
should
have
been
split
equally.
He
submitted
that
this
should
be
the
same
with
respect
to
the
family
allowance.
By
way
of
historical
background,
it
is
to
be
noted
that
the
child
tax
benefit
which
was
introduced
in
the
1992
federal
budget
replaced
the
family
allowance,
refundable
child
tax
credit
and
the
non-refundable
tax
credit
for
dependent
children
beginning
in
January
1993
with
a
single
non-taxable
monthly
payment
made
to
the
custodial
parent
of
children
under
the
age
of
18.
The
definition
of
“eligible
individual”
in
section
122.6
of
the
Income
Tax
Act
which
determined
which
parent
was
entitled
to
receive
the
child
tax
benefit
for
the
years
1993
and
following,
does
not
at
first
glance
appear
to
be
as
formalistic
as
the
parallel
definition
with
respect
to
child
tax
credit
applicable
in
1992
and
prior
years.
In
this
appeal
however,
the
Court
is
only
concerned
with
the
provisions
of
the
Act
applicable
in
1992.
Those
are
as
follows:
122.2(2)
In
this
section,
“eligible
child”
of
an
individual
for
a
taxation
year
means
a
child
in
respect
of
whom
the
individual
(a)
is
entitled
to
receive
a
family
allowance
under
the
Family
Allowances
Act...
“supporting
person”
of
an
eligible
child
of
an
individual
for
a
taxation
year
means
(c)
any
taxpayer
who
deducted
an
amount
under
section
118
for
the
year
in
respect
of
an
eligible
child
of
the
individual.
56.(5)
An
individual
who
is
deemed
by
subsection
(6)
or
(7)
to
have
supported
in
a
particular
month
of
a
taxation
year
a
person
in
respect
of
whom
(a)
a
family
allowance
under
the
Family
Allowances
Act,
1973,
or
(b)
an
allowance
under
a
law
of
a
province
that
provides
for
payment
of
an
allowance
similar
to
the
family
allowance
provided
under
the
Family
Allowances
Act,
1973
is
paid
for
the
particular
month
shall
include
in
computing
his
income
for
the
year
an
amount
equal
to
the
aggregate
of
all
amounts
each
of
which
is
the
amount
of
such
an
allowance
received
by
him
or
his
spouse
for
a
month
of
the
year
in
which
he
is
deemed
to
have
supported
the
person.
(6)
For
the
purposes
of
subsection
(5)
and
subject
to
subsection
(7),
an
individual
shall
be
deemed
to
have
supported
a
person
in
a
particular
month
of
a
taxation
year
if
(a)
the
person
is
a
child
of,
or
is
dependent
for
support
in
the
particular
month
on,
the
individual
or
the
individual’s
spouse;
and
...
(7)
For
the
purposes
of
subsection
(5),
where
(a)
an
amount
is
allowed
under
subsection
118(1)
by
reason
of
paragraph
(b)
thereof
in
computing
an
individual’s
tax
payable
under
this
Part
for
a
taxation
year
in
respect
of
a
person
referred
to
in
subsection
(5),
the
individual
shall
be
deemed
to
be
the
only
individual
to
have
supported
the
person
in
each
month
of
the
year
and
any
allowance
referred
to
in
subsection
(5)
that
is
paid
in
respect
of
the
person
for
each
such
month
shall
be
deemed
to
have
been
received
by
the
individual;
and
(b)
an
allowance
referred
to
in
that
subsection
is
paid
in
respect
of
a
person
for
a
particular
month
of
a
taxation
year
and
no
amount
in
respect
of
the
allowance
would,
but
for
this
paragraph,
be
included
in
computing
the
income
for
the
year
of
any
individual,
the
individual
to
whom
the
allowance
is
paid
shall
be
deemed
to
have
supported
the
person
in
the
particular
month.
The
Family
Allowances
Act,
1973,
S.C.,
1973-74,
c-44
provides
as
follows:
2(1)
In
this
Act
“parent”,
in
relation
to
a
child,
means
an
individual
resident
in
Canada
who
wholly
or
substantially
maintains
that
child;
3(1)
Subject
to
this
Act,
there
shall
be
paid
out
of
the
Consolidated
Revenue
Fund,
for
each
month,
a
family
allowance
of
twenty
dollars
or
such
greater
amount
as
may
be
determined
from
time
to
time
pursuant
to
section
13
in
respect
of
each
child
whose
parents
are
resident
in
Canada
or
deemed
to
be
resident
in
Canada
in
prescribed
circumstances
and
who
has
at
least
one
parent
who....
7(1)
Where
payment
of
a
family
allowance
is
approved,
the
allowance
shall,
in
such
manner
and
at
such
times
as
are
prescribed,
be
paid
to
the
female
parent,
if
any,
or
to
such
parent
or
other
person
or
such
agency
as
is
authorized
by
or
pursuant
to
the
regulations
to
receive
it.
The
most
relevant
regulations
under
the
Family
Allowances
Act,
1973
are:
3.
For
the
purposes
of
the
Act
and
these
Regulations,
(d)
a
child
shall,
in
respect
of
any
month,
be
considered
to
be
substantially
maintained
by
a
person
if
(i)
the
person
contributes,
during
the
month,
toward
the
care,
maintenance,
education,
training
and
advancement
of
the
child
an
amount
that
is
equal
to
or
greater
than
the
amount
provided
by
any
other
person.
.
..
9(1)
Where
payment
of
a
family
allowance
is
approved,
the
allowance
shall
be
paid
to
the
male
parent
where,
(a)
there
is
no
female
parent;
or
(b)
the
female
parent
and
male
parent
are
living
separate
and
apart
and
the
male
parent
has,
in
fact,
custody
of
the
child.
(1.1)
Where
payment
of
a
family
allowance
is
approved
and
both
the
female
parent
and
male
parent
declare
in
writing
that
the
male
parent
is
the
parent
who
is
primarily
responsible
for
the
day-to-day
care
of
the
child,
the
family
allowance
may
be
paid
to
the
male
parent.
(1.2)
Where
payment
of
a
family
allowance
is
approved
and
the
female
parent
and
the
male
parent
are
living
separate
and
apart
and
have,
in
fact,
joint
custody
of
the
child,
the
family
allowance
may,
on
the
written
request
of
both
the
female
parent
and
the
male
parent,
be
paid
to
the
male
parent.
It
is
clear
from
the
foregoing
that
the
general
rule
is
that
family
allowances
are,
as
a
rule,
paid
to
the
mother.
There
are
cases
where
the
father
is
entitled
but
the
sole
fact
of
equal
custody
and
support
is
not
one
of
them.
Subsection
9(1.2)
of
the
Family
Allowance
regulations
contemplates
the
precise
situation
where
the
female
parent
and
the
male
parent
are
living
separate
and
apart
with
joint
custody
of
the
child
and
provides
that
in
such
a
situation
the
male
parent
is
to
be
the
recipient
only
if
a
written
request
of
both
the
female
parent
and
the
male
parent
is
made.
Apparently
the
appellant
was
never
able
to
succeed
in
convincing
his
former
spouse
to
sign
any
request
entitling
him
to
the
child
tax
credit
or
the
family
allowance
payments.
The
appellant
submitted
that
the
monetary
outcome
of
his
appeal
was
immaterial
and
that
the
issue
was
one
of
principle,
namely
that
he
and
other
devoted
fathers
in
the
same
situation
are
discriminated
against.
Although
not
specifically
pleaded
as
such,
this
appeared
to
be
an
argument
based
on
subsections
15(1),
24(1)
and
section
28
of
the
Charter
of
Rights
and
Freedoms
and
subsection
52(1)
of
the
Constitution
Act,
1982
which
provide
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.
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.
28.
Notwithstanding
anything
in
this
Charter,
the
rights
and
freedoms
referred
to
in
it
are
guaranteed
equally
to
male
and
female
persons.
52.(1)
The
Constitution
of
Canada
is
the
supreme
law
of
Canada,
and
any
law
that
is
inconsistent
with
the
provisions
of
the
Constitution
is,
to
the
extent
of
the
inconsistency,
of
no
force
or
effect.
Section
57
of
the
Federal
Court
Act
provides
that
a
court
cannot
adjudge
as
to
the
constitutional
invalidity
or
inoperability
of
a
law
unless
notice
has
been
served
on
the
Attorney
General
of
Canada
and
the
attorneys
general
of
all
the
provinces.
No
such
notices
were
given
and
presumably
this
appeal
could
have
been
dismissed
for
that
reason
alone.
Numerous
decisions
have
discussed
whether
particular
provisions
of
the
Act
violate
the
Charter
and,
by
far,
the
vast
majority
have
determined
that
there
was
no
violation.
Examples
of
these
are
Gifford
v.
Minister
of
National
Revenue,
[1991]
1
C.T.C.
2254,
91
D.T.C.
953
(T.C.C.),
where
Mogan
J.T.C.C.
stated
at
page
2259
(D.T.C.
957):
The
appellant
has
also
raised
a
constitutional
argument
in
his
notice
of
appeal.
He
states
that
if
the
legislation
reviewed
above
would
otherwise
prohibit
the
deductions
which
he
has
claimed,
then
such
legislation
is
unconstitutional
because
it
provides
for
gender
discrimination
because
“in
the
vast
majority
of
cases
of
this
type
it
is
the
ex-husband
who
pays
support”.
Even
if
I
assume
that
the
husband/father
pays
support
in
most
cases,
I
would
not
conclude
that
the
above
legislation
violates
section
15
of
the
Charter
of
Rights
and
Freedoms.
I
adopt
the
reasoning
of
Garon
J.T.C.C.
in
Tiberio
v.
Minister
of
National
Revenue,
[1990]
2
C.T.C.
2545,
91
D.T.C.
17
(T.C.C.),
at
page
2555
(D.T.C.
24),
in
which
he
quotes
the
following
passage
from
the
judgment
of
McIntyre
J.
in
the
decision
of
the
Supreme
Court
of
Canada
in
Andrews
v.
The
Law
Society
of
B.C.,
[1989],
1
S.C.R.
143
at
page
182:
However,
in
assessing
whether
a
complainant’s
rights
have
been
infringed
under
subsection
15(1),
it
is
not
enough
to
focus
only
on
the
alleged
ground
of
discrimination
and
decided
whether
or
not
it
is
an
enumerated
or
analogous
ground.
The
effect
of
the
impugned
distinction
or
classification
on
the
complainant
must
be
considered.
Once
it
is
accepted
that
not
all
distinctions
and
differentiations
created
by
law
are
discriminatory,
then
a
role
must
be
assigned
to
subsection
15(1)
which
goes
beyond
the
mere
recognition
of
a
legal
distinction.
A
complainant
under
subsection
15(1)
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.
Also,
in
O.P.S.E.U.
v.
National
Citizens’
Coalition
Inc.
et
al.,
[1987]
2
C.T.C.
59,
87
D.T.C.
5270
(Ont.
H.C.),
Mr.
Justice
Galligan
at
page
61
(D.T.C.
5272)
stated:
The
argument
advanced
with
respect
to
subsection
15(1)
is
that
the
circumstances
disclosed
in...the
statement
of
claim
show
that
certain
taxpayers
could
be
disentitled
to
equal
benefit
of
the
tax
laws.
I
have
some
difficulty
in
understanding
how
tax
laws
can
be
said
to
bestow
benefits
on
taxpayers.
But,
having
said
that,
it
is
clear
that
some
taxpayers
are
entitled
to
certain
deductions
from
their
income
while
others
are
not.
The
Income
Tax
Act
is
full
of
examples
where
one
taxpayer
for
certain
reasons
has
certain
deductions
which
another
taxpayer
does
not
have.
Also,
certain
taxpayers
are
called
upon
to
pay
more
taxes
than
others.
Some
taxpayers
are
called
upon
to
pay
taxes
at
a
higher
rate
than
others.
The
Charter,
as
it
has
been
said
in
many,
many
cases,
too
numerous
to
mention,
is
an
important
piece
of
legislation
which
constitutionally
protects
important
rights
and
freedoms
of
people
who
live
in
this
country.
It
seems
to
me
that
it
comes
very
close
to
trivializing
that
very
important
constitutional
law,
if
it
is
used
to
get
into
the
weighing
and
balancing
of
the
nuts
and
bolts
of
taxing
statutes.
It
is
interesting
to
note
that
the
exact
same
Charter
submission
as
the
one
in
this
appeal
was
present
in
Keyes
v.
Minister
of
National
Revenue,
[1989]
1
C.T.C.
2157,
89
D.T.C.
91.
There
Bonner
J.T.C.C.
stated
as
follows
at
page
2161
(D.T.C.
93-94):
As
to
the
child
tax
credit,
the
appellant
contends
that
paragraph
122.2(2)(a)
of
the
Income
Tax
Act
is
inconsistent
with
the
provisions
of
section
15
of
the
Charter
in
that
paragraph
122.2(2)(a)
incorporates
by
reference
subsection
7(1)
of
the
Family
Allowances
Act.
Thus
he
argues
that
by
virtue
of
subsection
52(1)
of
the
Constitution
Act,
1982,
the
word
“female”
should
be
regarded
as
of
no
force
and
effect.
The
appellant
in
argument
proceeded
from
the
assertion
that
the
term
“female
parent”
is
a
“direct
violation”
of
section
15
of
the
Charter
to
a
conclusion
that
the
extent
of
the
inconsistency
between
section
15
and
subsection
122.2(2)
together
with
the
provisions
incorporated
therein
by
reference
is
such
as
to
require
that
the
word
“female”
be
struck
out.
He
submitted
that
the
phrase
“each
parent”
would
be
consistent
with
sections
15
and
28
of
the
Charter
and
should
be
substituted.
As
I
see
it,
the
solution
is
not
quite
that
simple.
By
taking
the
position
that
he
is
entitled
to
25
per
cent
of
the
credit
on
the
basis
that
he
had
custody
of
his
children
at
least
25
per
cent
of
the
time,
the
appellant
seeks
to
divide
the
allowance
between
himself
and
his
wife.
Striking
out
gender
references
would
not
lead
to
that
result.
Rather
it
would
eliminate
any
means
of
identifying
the
parent
entitled
to
the
credit.
Whether
the
further
consequence
of
that
elimination
is
that
each
parent
would
be
entitled
to
a
full
credit
or
that
neither
parent
would
be
entitled
to
a
credit
is
a
question
which
the
appellant
did
not
deal
with.
In
either
case,
subsection
24(1)
of
the
Charter
does
not
empower
the
courts
to
amend
or
rewrite
invalid
legislation
in
the
manner
sought
by
the
appellant.
If
paragraph
122.2(2)(a)
is
invalid
it
falls,
and
in
the
absence
of
legislative
action
to
fill
the
void
it
cannot
be
said
that
the
appellant
is,
within
the
meaning
of
subsection
122.2(1),
“an
individual
who
has
an
eligible
child...”
and
is
therefore
entitled
to
the
credit.
In
short,
the
Charter
argument,
if
successful,
would
not
lead
to
a
conclusion
that
the
assessment
under
appeal
is
too
high.
This
branch
of
the
appeal
therefore
fails
as
well.
The
appeal
will
be
dismissed.
Bonner
J.T.C.C.
did
not
determine
whether
the
provisions
in
question
violated
the
Charter
but
rather
concluded
that
even
if
they
did,
the
Tax
Court
was
not
able
to
rewrite
those
provisions
so
as
to
permit
the
credit
to
be
divided.
For
the
above
reasons
the
appeal
is
dismissed.
As
noted
earlier,
this
relates
only
to
the
taxation
year
1992
and
is
without
prejudice
to
the
rights
of
the
appellant
to
take
whatever
proceedings
may
be
available
to
him
to
object
to
and/or
appeal
any
determination
by
the
Minister
of
his
ineligibility
for
the
child
tax
benefit
in
the
years
1993
and
1994
and
thereafter.
165(1)
A
taxpayer
who
objects
to
an
assessment
under
this
Part
may
serve
on
the
Minister
a
notice
of
objection,
in
writing,
setting
out
the
reasons
for
the
objection
and
all
relevant
facts,
(a)
where
the
assessment
is
in
respect
of
the
taxpayer
for
a
taxation
year
and
the
taxpayer
is
an
individual
(other
than
a
trust)
or
a
testamentary
trust,
on
or
before
the
later
of
(i)
the
day
that
is
one
year
after
the
balance-due
day
of
the
taxpayer
for
the
year,
and
(ii)
the
day
that
is
90
days
after
the
day
of
mailing
of
the
notice
of
assessment;
and
(b)
in
any
other
case,
on
or
before
the
day
that
is
90
days
after
the
day
of
mailing
of
the
notice
of
assessment.
Paragraph
165(3)
contemplates
a
direct
appeal
to
the
Tax
Court
but
only
after
the
original
notice
of
objection
has
been
served.
Consequently
the
Court,
at
this
stage,
must
and
does
hereby
dismiss
the
appeal.
Notwithstanding
that
the
appeal
is
dismissed
for
the
aforesaid
technical
yet
valid
reason,
the
Court,
having
heard
the
parties
and
acknowledging
that
the
appellant
may
well
proceed
in
a
proper
procedural
manner
with
respect
to
the
1992
and
possibly
later
years,
the
following
obiter
comments
are
offered
to
assist
but
not
to
bind
both
parties
in
any
future
proceedings.
Appeal
dismissed.
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