Kim Christoffersen v. Minister of National Revenue, [1993] 2 CTC 2054, 93 DTC 727

Brulé, T.C.C.J.:—This appeal was made with respect to the 1986 and 1987 taxation years in which the appellant was denied a claim for a deduction pursuant to paragraph 110(1)(e.1) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act").

At the outset it was pointed out that the appeal relating to the appellant's 1986 taxation year could not be adjudicated upon as the Court was without jurisdiction, as the appellant had never filed a notice of objection in relation to the assessment of the appellant for that year. This was accepted.

Facts

1. The appellant, in her 1987 tax return, made a claim for a deduction pursuant to paragraph 110(1)(e.1) of the Act in respect of Mr. Robert Gray with whom she was living in a common-law relationship.

2. During the 1987 tax year Mr. Robert Gray was a person with a disability.

3. The respondent denied the claim on the basis that the appellant, for the purposes of the Act was not married to the person in respect of whom she claimed the deduction.

4, The appellant was notified that she did not qualify for a deduction pursuant to section 110.3 of the Act.

Issue

The issues are:

1. whether subsection 109(6) and paragraphs 109(1)(b), 109(1)(d), and 110(1)(e.1) of the Act infringe any rights of the appellant guaranteed by the Canadian Charter of Rights and Freedoms, Schedule B to the Constitution Act, 1982 enacted by the Canada Act, 1982, c.11 (U.K.) ("Charter"); and

2. whether subsection 109(6) and paragraphs 109(1)(b), 109(1)(d), and 110(1)(e.1) of the Act violate any rights of the appellant protected under the Canadian Human Rights Act, S.C. 1976-1977, chapter 33, as amended and whether the appellant is entitled to any relief under that Act.The appellant feels that the Act discriminates against her according to section 15 of the Charter and her appeal should be allowed. Since 1980 she had been living common-law with all the attributes of a marriage except the formal marriage itself. In addition she added, there is a necessity to care for her "husband" under the provisions of the Ontario Family Law Act.

Respondent's position

Counsel for the respondent directed her argument to the appellant's 1987 taxation year and whether or not there was application for the Charter or the Canadian Human Rights Act.

Dealing with the latter statute first it was simply pointed out that the Court lacked jurisdiction to deal with this statute and the problem in the appeal.

With reference to the Charter counsel submitted that persons living in a “common-law” relationship are not spouses of one another or connected by marriage with one another for the purposes of the Act. Therefore, the appellant did not qualify for the deduction claimed in her 1987 taxation year under paragraph 110(1)(e.1) of that Act, with respect to Mr. Robert Gray, since she would not have been entitled to validly claim a deduction under either paragraph 109(1)(b) or paragraph 109(1)(d) vis-à-vis Mr. Robert Gray. It was said that none of the appellant's rights and freedoms guaranteed by section 15 of the Charter had been denied or infringed by the relative sections of the Act.

In support of her argument counsel presented several cases to the Court. The first set dealing with whether or not Mr. Robert Gray was the spouse of the appellant in 1987 included:

The Queen v. Taylor Estate, [1984] C.T.C. 244, 84 D.T.C. 6234 (F.C.T.D.);

Weronski v. M.N.R., [1991] 2 C.T.C. 2431, 91 D.T.C. 1105 (T.C.C.);

Fluxgold v. Canada, [1990] 1 C.T.C. 176, 90 D.T.C. 6187 (F.C.T.D.);

Reid v. M.N.R., [1991] 2 C.T.C. 2715, 91 D.T.C. 1443 (T.C.C.).

It was noted that since this appeal for the 1987 year the Act has been changed, but the Court must consider the situation as it existed in 1987 in terms of the provisions of the Act and the facts of the case.

With reference to the Charter argument the Court was directed to the decisions in:

Smith v. M.N.R., [1989] 2 C.T.C. 2401, 89 D.T.C. 639 (T.C.C.);

Tiberio v. M.N.R., [1990] 2 C.T.C. 2545, 91 D.T.C. 17 (T.C.C.);

Flint v. M.N.R., [1991] 1 C.T.C. 2365, 91 D.T.C. 528 (T.C.C.);

Keyes v. M.N.R., [1989] 1 C.T.C. 2157, 89 D.T.C. 91 (T.C.C.);

Andrews v. Law Society (British Columbia), [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1;

Leroux v. Co-operators General Insurance Co, (1991), 4 O.R. (3d) 609, 83 D.L.R. (4th) 694 (C.A.).

Analysis

I do not intend to dwell at length on the arguments in this case. I agree that the Court is without jurisdiction to consider any allegation of a violation of the Canadian Human Rights Act. A complaint alleging a contravention of the Act must properly be brought before the Canadian Human Rights Commission pursuant to sections 40, 41, 43, 49 and 50 of that Act and not before this Court.

Counsel for the respondent thoroughly reviewed the jurisprudence dealing with the Charter as it might apply in this appeal and such may be found in the cases mentioned above. I would like to make reference to the Smith case, supra. At page 2407 (D.T.C. 643) of that case in disposing of the appeal Rip, J., said:

In enacting subparagraph 109(1)(b) Parliament required that there be a degree of connection between the dependant and a taxpayer for the taxpayer to be permitted the deduction. To sever the connection is a function of the legislature, not the Court.

Under the circumstances found in this appeal there is no remedy which this Court can grant which would result in the relief sought by the appellant.

The appeals are dismissed.

Appeals dismissed.