Mary Anne Sincock v. Her Majesty the Queen (Informal Procedure), [1995] 2 CTC 2449, 95 DTC 535

McArthur J.T.C.C.:-These appeals were heard in Sudbury, Ontario under the informal procedures of this Court with respect to the appellant’s 1991 and 1992 taxation years.

The respondent disallowed the appellant’s claim for non-refundable tax credits of $4,118 in 1991 and $4,223 in 1992 on the basis that her dependent son was not suffering from a prolonged mental or physical impairment, which markedly restricted him in his abilities to perform activities of daily living.

The appellant, who is a registered nurse, testified that her son Jon was diagnosed in 1991 with Type I diabetes. Since then his life depends on twice daily insulin injections together with monitoring of his blood sugar levels four times daily and strict adherence to a controlled diet and eating schedule. The appellant was very well versed in the daily routine and needs of her diabetic son.

In 1991, Jon was five years old and could not administer the insulin injections nor use the computer to test his blood sugar levels. The appellant and her husband performed the critical injections and testing together with careful monitoring of his special dietary needs both at home and at school. The cost to the appellant for these special needs was almost $200 monthly. The threat of an insulin reaction was always present and occurred two or three times monthly. These reactions could be life threatening if not treated within 15 minutes.

Dr. J.K. Madden included the following in his report dates November 17, 1994:

Jon is a young boy who is under my care for diabetes. He was five years old when he was diagnosed with Type I diabetes. This means that he requires insulin injections to control his diabetes and therefore to live.

As regards his diabetic control, he has required close observation by his parents. This is quite typical for young children with diabetes.

Otherwise his growth, development and health has been good.

There is no doubt in my mind that the young diabetic requires vigilant parents to watch over their child to ensure that all the parameters of good diabetic control are followed. These include the monitoring of the sugars, the promotion of a good dietary pattern and the promotion of good exercise habits. Throughout this period their parents are ever watchful for the development of hypoglycemia which unfortunately can occur at unexpected times. This is a chronic disease and it does require significant amounts of time and effort and diligence on behalf of parents to ensure that their child evolves into a well functioning adult with good diabetic control. It is my opinion that the diabetic management requires more real effort and time in its management than most of the chronic diseases that affect children.

For the parents to have to provide such vigilant and tedious care to their child over all the years of the child’s life that he/she remains with the parents, I truly believe demonstrates that this is in fact a disability. As a disability it deserves the entitlement of a tax credit in my opinion. Good management and control of diabetes in the formative years of a child’s life cannot but promote better long-term health and decrease the frequency of the serious complications. This in turn must represent a positive benefit both to the patient and to society.

While Dr. Madden was not present to be examined and cross-examined and the report was not entered in accordance with the Rules for Informal Procedures, it is allowed as evidence. The weight given to Dr. Madden’s evidence is somewhat restricted because of the deficiencies referred to.

Dr. Sutherland gave evidence on behalf of the respondent and was cross-examined by counsel for the appellant. She arrived at the following conclusion in her report dated September 30, 1994:

Jon Sincock was five years old in April 1991 when he was diagnosed as having diabetes. He has responsible parenting and community resources who have made sure he receives the proper diet, medication and monitoring. He receives excellent medical care and his diabetes is under good control on insulin injections. With recent technical advances "home monitoring" of the glucose level is available and gives the diabetic a much improved measure of control of the blood sugar than was previously available.

There is no doubt that Mary Anne Sincock has educated herself and is educating her son on how to control his diet and glucose. The objective of long-term diabetic management is to achieve control and education is the cornerstone of satisfactory care of Jon Sincock.

To her credit she is doing an excellent job of making sure his care is the very best it can be. Dr. Madden and Mary Anne indicates Jon can do his basic daily activities. There is no medical evidence on file to indicate that Jon Sincock was continuously, markedly restricted in a basic activity of daily living in the 1991 and 1992 taxation years.

Therefore, on the basis of the current medical information it would appear to the medical advisory Group that Jon Sincock did not meet the legislative criteria for the Disability Tax Credit in the 1991 and 1992 taxation years.

The Income Tax Act reads in part:

118.3(1) Where

(a) an individual has a severe and prolonged mental or physical impairment,

(a.l) the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(a.2) a medical doctor*, or where the impairment is an impairment of sight, a medical doctor* or an optometrist, has certified in prescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula.

118.4(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,

(a) an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months;

(b) an individual’s ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living;

(c) a basic activity of daily living in relation to an individual means

(ii) feeding and dressing oneself,

(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living.

In applying subparagraph 118.4(1 )(c)(ii) the appellant’s counsel submitted that Jon was not able to perform the basic activity of daily living of being able to feed himself. Feeding by necessity included the corporal injection of insulin by his parents, the insulin being necessary for the proper digestion of his food and further more his food had to be carefully selected and given to him and his guardians had to be sure he ate the proper amounts of his mandatory dietary needs.

The respondent, of course, took the position that the appellant’s son, a diabetic, was not suffering from a physical impairment, which markedly restricted him in his abilities to perform activities of daily living including feeding himself like an average five and six-year-old.

Analysis

The Court has to rely considerably on medical opinions. Dr. Madden stated in a disability tax credit certificate dated February 11, 1992, on behalf of the appellant:

There are ongoing difficulties in managing his diet particularly in relation to his dietary routine. He has to eat on time and eat appropriately. This is a constant ongoing difficulty, especially in the young growing diabetic.

This medical opinion during the relevant taxation years, of course, supports the appellant’s position that the definition of "a basic activity of daily living" has been met in that Jon could not feed himself with the constant monitoring. It is noted that "feeding" as contained in subparagraph 118.4(c)(ii) is combined with feeding "and dressing oneself'-a combination both of which must be satisfied. There was no evidence that Jon could not dress himself in the same manner as a healthy average five or six-year- old.

Dr. Sutherland, on behalf of the respondent, stated the following:

The medically accepted concept of the activities of daily living has been defined in Taber’s Cyclopedic Medical Dictionary:

Activities of daily living. ABBR: ADL. The self-care, communication, and mobility skills required for independence in everyday living. The distinction is made between basic activities of daily living and ancillary activities; such as, telephone use, preparing meals, laundry, house cleaning, taking medicines, receiving medical treatments and handling finances, etc. SYN-independent living skills; daily living skills.

A similar definition is found in Krusen’s Handbook of Physical Medical and Rehabilitation:

The levels of independence of physical function which are referred to as self-care activities or activities of daily living, ADLs. The activities that must be performed to achieve functional independence are classified as mobility activities, hygiene, eating, dressing and bowel and bladder control.

She continued in her report to note, on the paper information provided her, that:

Jon has no problem seeing, walking, dressing or feeding himself. Jon can hear and speak. Jon "needs help drawing insulin in proper doses in relation to blood sugar levels.

Jon required daily care, as a five and six-year-old diabetic, that included insulin injections, blood-testing and careful monitoring of his diet. While he did face restrictions in his daily activities, and was carefully guarded by parents, upon considering the expert reports and upon hearing the appellant, I conclude that he does not meet the rigorous and onerous criteria set forth in the legislation.

During the taxation years 1991 and 1992 Jon was not suffering from a severe and prolonged physical impairment as a result of which he was unable to perform a basic activity of daily living. But for the administrations and monitoring referred to, he performed basic activities of daily living. His physical impairment, I conclude, was moderate and not "severe".

For these reasons the appeals are dismissed.

Appeals dismissed.