Beaubier,
J.T.C.C.:—This
matter
was
heard
in
Calgary,
Alberta,
on
February
25,
1993.
It
is
an
appeal
pursuant
to
the
informal
procedure
of
this
Court.
The
appellant
was
the
only
witness.
The
appeal
concerns
the
appellant’s
deduction
for
child
care
expenses
in
1991.
The
assumptions
of
the
Crown,
contained
in
paragraph
6
of
the
reply
read
as
follows:
6.
In
so
reassessing
the
appellant,
the
Minister
made
the
following
assumptions
of
fact:
(a)
during
the
1991
taxation
year
the
appellant
reported
total
income
in
the
amount
of
$21,872.20
from
the
following
sources:
|
(i)
|
Unemployment
Insurance
Benefits:
|
$13,748.00
|
|
(ii)
|
Interest
Income:
|
193.65
|
|
(iii)
|
R.R.S.P.
Income:
|
9,946.50
|
|
(iv)
|
Net
Professional
Loss:
|
(2,015.95)
|
|
Total
Income:
|
$21,872.20
|
(b)
during
the
1991
taxation
year
the
appellant
did
not
earn
any
income
from
the
following
sources:
(i)
salaries,
wages
and
other
remuneration
in
the
course
of,
or
by
virtue
of
offices
or
employment
(ii)
income
from
training
allowances,
scholarships
and
bursaries
or
research
grants
(iii)
income
from
all
businesses
carried
on
either
alone
or
as
a
partner
actively
engaged
in
the
business;
(c)
the
appellant’s
spouse,
Terrence
Lederhouse,
is
a
supporting
person
of
the
eligible
children;
(d)
the
appellant’s
spouse
had
earned
income
in
the
amount
of
$96,588;
(e)
the
earned
income
of
the
appellant
does
not
exceed
the
earned
income
of
her
spouse;
(f)
during
the
1991
taxation
year,
the
appellant
was
not
(i)
a
person
in
full-time
attendance
at
a
designated
educational
institution,
(ii)
a
person
certified
by
a
medical
doctor
to
be
a
person
who
(A)
by
reason
of
mental
or
physical
infirmity
and
confinement
throughout
a
period
of
not
less
than
two
weeks
in
the
year
to
bed
or
to
a
wheelchair
or
as
a
patient
in
a
hospital,
asylum
or
other
similar
institution,
was
incapable
of
caring
for
children,
or
(B)
by
reason
of
mental
or
physical
infirmity,
was
in
the
year,
and
likely
to
be
for
a
long-continued
period
of
indefinite
duration,
incapable
of
caring
for
children,
(iii)
a
person
confined
to
a
prison
or
similar
institution
throughout
a
period
of
not
less
than
two
weeks
in
the
year,
or
(iv)
a
person
who,
by
reason
of
a
breakdown
of
his
marriage
or
similar
domestic
relationship,
was
living
separate
and
apart
from
the
appellant
at
the
end
of
the
year
and
for
a
period
of
at
least
90
days
commencing
in
the
year.
Subparagraph
(f)
was
corrected
by
consent
at
the
opening
of
trial
to
read
as
quoted.
There
was
no
evidence
led
which
disproved
these
assumptions.
After
the
trial
the
Court
reserved
its
decision
and
caused
the
deputy
registrar
to
send
the
following
letter
to
the
parties
on
March
2,
1993:
You
will
recall
that
Judge
Beaubier
of
this
Court
heard
this
matter
in
Calgary
on
February
25,
1993
and
reserved
his
decision.
Upon
returning
to
Ottawa
he
reviewed
the
following
decisions:
1.
Symes
v.
The
Queen,
[1989]
1
C.T.C.
476,
89
D.T.C.
5243,
(Federal
Court,
Trial
Division);
2.
The
Queen
v.
Symes,
[1991]
2
C.T.C.
1,
91
D.T.C.
5397
(Federal
Court
of
Appeal).
Photocopies
of
the
above
decisions
are
enclosed
[not
reproduced].
You
will
recall
that
the
appellant
filed
her
claim
for
child
care
expenses
pursuant
to
section
63
of
the
Income
Tax
Act.
However,
the
judge’s
notes
concerning
the
evidence
indicate
that
the
appellant
had
various
contract
work
and
particularly,
after
she
was
laid
off
from
her
employment,
she
had
nothing
but
contract
work.
In
these
circumstances
it
may
be
that
the
appellant
wishes
to
amend
her
appeal
and
argue
that
she
is
entitled
to
a
business
expense
pursuant
to
the
rationale
in
Symes.
In
such
event,
the
parties
may
wish
to
reargue
this
matter
since
it
was
not
raised
by
the
judge
or
by
either
of
the
parties
during
the
trial
itself.
For
the
foregoing
reasons
the
Court
is
of
the
opinion
that
pursuant
to
section
18.22,
exceptional
circumstances
exist
which
prevent
the
Court
from
giving
a
judgment
in
this
matter
within
the
60-day
time
period
prescribed
for
informal
hearings.
We
would
appreciate
advice
from
each
of
you
forwarded
to
the
Court
by
fax
within
three
weeks
from
the
date
of
this
letter
at
the
court
fax
number
(613)
957-9034
respecting
the
following:
Do
you
wish
to
submit
further
argument
before
Judge
Beaubier
in
this
matter
respecting
the
applicability
of
the
Symes
decision
to
the
appeal
of
Catherine
J.
Lederhouse?
If
you
wish
to
present
such
argument,
the
Court
will
fix
a
time
and
date
for
the
hearing
on
a
peremptory
basis
to
occur
in
Calgary
during
the
week
of
April
19,
1993.
In
the
event
the
parties
do
not
wish
to
present
further
argument,
then
the
Court
will
render
a
decision
taking
into
consideration
the
evidence
before
it
and
the
Symes
decisions.
On
March
19,
1993,
the
appellant
replied
as
follows:
I
am
in
receipt
of
your
letter
dated
March
2
1993,
requesting
that
I
inform
you
if
I
wish
to
submit
further
argument
in
support
of
my
case.
Please
be
advised
that
I
do
not
wish
to
do
so.
My
case
as
previously
presented
adequately
supports
the
fact
that
in
order
for
me
to
remain
employable,
it
was
necessary
for
me
to
sustain
my
childcare
situation.
It
has
been
demonstrated
by
my
past
employment
history
that
the
services
of
a
nanny
were
engaged
solely
for
the
purposes
of
maintaining
my
employment,
which
does
not
contravene
the
spirit
of
the
tax
act.
I
made
the
point
during
the
hearing
on
February
25,
1993,
that
my
competitors
for
available
positions
were
generally
males.
Most
often,
men
seeking
employment
are
available
on
short
notice
to
fill
a
particular
situation
as
they
are
not
the
principal
caregivers
for
their
children.
In
order
to
remain
competitive,
it
was
mandatory
for
me
to
be
available
on
short
notice
as
well.
With
this
point,
I
see
a
strong
parallel
between
my
arguments
and
those
presented
in
the
Symes
case.
If
my
appeal
is
not
accepted,
I
feel
I
will
have
been
discriminated
against
as
a
woman
and
primary
caregiver
for
my
three
children.
I
do,
however,
feel
my
claim
is
justified
as
a
childcare
expense
and
not
as
a
business
expense.
This
does
make
the
Symes
case
of
no
relevance
to
mine.
Being
a
professional
geologist
as
opposed
to
an
accountant
or
tax
lawyer,
I
was
assuming
that
it
would
be
the
responsibility
of
the
Court
to
make
a
judgement
on
my
case
with
the
facts
at
hand.
If
arguments
presented
in
the
Symes
case
strengthen
my
position,
I
trust
that
they
will
be
appropriately
reviewed.
As
I
stated
on
February
25,
1993,
I
feel
that
the
spirit
of
the
child
care
deduction
in
the
Income
Tax
Act
is
to
provide
tax
relief
to
parents
who
must
engage
child
care
services
in
order
for
them
to
be
employed.
As
my
situation
certainly
qualifies
in
this
scenario,
my
deduction
should
be
allowed.
I
trust
that
my
arguments
will
lead
to
a
favorable
judgement
of
my
behalf.
Thus,
the
appellant
has
chosen
to
adhere
to
her
claim
for
child
care
expenses
and
not
proceed
with
a
claim
for
a
business
expense.
The
Income
Tax
Act
is
clear
respecting
the
limitations
which
affect
a
claim
for
child
care
expense.
Paragraph
63(3)(b)
reads
as
follows:
"earned
income”
of
a
taxpayer
means
the
aggregate
of
(i)
all
salaries,
wages
and
other
remuneration,
including
gratuities,
received
by
him
in
respect
of,
in
the
course
of,
or
by
virtue
of
offices
and
employments,
and
all
amounts
included
in
computing
his
income
by
virtue
of
sections
6
and
7,
(ii)
amounts
included
in
computing
his
income
by
virtue
of
paragraph
56(1)(m),
(n)
or
(o),
and
(iii)
his
incomes
from
all
businesses
carried
on
either
alone
or
as
a
partner
actively
engaged
in
the
business;
The
appellant
does
not
come
within
the
restrictions
contained
in
section
63
except
insofar
as
she
has
been
assessed.
Immediately
upon
judgment
being
rendered
by
the
Supreme
Court
of
Canada
in
the
matter
of
Symes
v.
Canada,
[1994]
1
C.T.C.
40,
94
D.T.C.
6001,
it
was
delivered
to
this
Court.
The
decision
and
the
dissents
therein
have
been
reviewed.
The
decision
of
the
majority
of
the
Supreme
Court
of
Canada
is
binding
upon
this
Court.
Insofar
as
it
is
applicable
to
the
facts
of
this
case,
it
confirms
the
views
expressed
in
this
decision.
The
appellant
has
not
met
the
onus
upon
her
to
upset
the
assumptions
of
fact
determined
by
the
Minister
of
National
Revenue.
In
these
circumstances
the
appeal
is
dismissed.
Appeal
dismissed.
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