Taylor,
T.C.J.:—This
is
an
appeal
heard
in
Vancouver,
British
Columbia,
on
December
3,
1987,
against
an
income
tax
assessment
for
the
year
1983
in
which
the
Minister
of
National
Revenue
disallowed
a
deduction
for
child
care
expenses
in
the
amount
of
$535.
The
pertinent
facts
were:
—
the
Appellant's
income
for
1983
of
$43,851.00
exceeded
the
income
for
1983
of
a
supporting
person
of
the
eligible
children
for
whom
child
care
expenses
were
claimed;
-
the
supporting
person
of
the
children
was
the
Appellant’s
husband,
Martin
McLaren,
who
had
nil
income
in
1983.
The
Respondent
relied,
inter
alia,
upon
subsection
63(2)
and
paragraph
63(3)(d)
of
the
Income
Tax
Act,
S.C.
1970-71-72,
c.
63
as
amended.
There
was
no
dispute
between
the
parties
regarding
the
facts
of
the
case,
but
in
answer
to
a
query
from
the
Court,
counsel
for
the
respondent
filed
the
following
submission:
Further
to
the
hearing
of
this
appeal
on
December
3,
1987,
His
Honour
Judge
Taylor
agreed
to
receive
written
submissions
from
the
parties
on
the
question
as
to
whether
nil
income
for
the
Appellant's
supporting
person
in
1983
disentitled
the
Appellant
to
her
claim
for
child
care
expenses.
Subsection
63(2)
of
the
Income
Tax
Act
denies
the
child
care
expense
deduction
to
the
Appellant
where
her
income
for
the
taxation
year
exceeds
the
income
for
that
taxation
year
of
the
supporting
person.
The
evidence
is
clear
that
the
Appellant's
income
exceeded
that
of
her
husband's.
Her
income
of
approximately
$43,000.00
exceeds
in
the
normal
ordinary
sense
of
the
words
her
husband's
income
of
zero.
His
Honour
expressed
concern
with
the
concluding
words
to
section
3
of
the
Income
Tax
Act
where
it
defines
the
taxpayer’s
income
as
"the
remainder,
if
any,
obtained
under
paragraph
(e)
.
.
.".
The
computation
of
income
under
section
3
and
its
various
paragraphs
does
not
allow
the
taxpayer's
income
to
be
less
than
zero.
His
Honour
suggested
that
the
words
"the
remainder,
if
any"
could
be
interpreted
to
mean
that
if
the
taxpayer
had
no
income,
and
his
income
could
not
then
be
considered
income
for
the
purposes
of
subsection
63(2).
It
is
the
Minister’s
position
that
this
interpretation
confuses
the
essential
requirement
of
subsection
(2).
The
essential
nature
of
this
test
is
comparative.
The
income
of
the
Appellant
exceeded
the
income
of
the
supporting
taxpayer.
If
the
supporting
person
has
no
income
and
the
Appellant
has
a
positive
amount,
the
appellant's
income
is
obviously
greater
than
the
income
the
supporting
person
has.
The
decision
in
Canterra
Energy
Ltd.
v.
The
Queen
87
D.T.C.
5019
(F.C.A.)
does
not
support
the
alternative
position.
Mr.
Justice
Urie
states
that
the
technical
meaning
of
words
is
to
be
adopted
only
when
the
context
of
the
statute
requires
it.
In
that
case,
it
was
a
question
as
to
whether
the
frontier
exploration
allowance
was
calculated
according
to
a
mathematical
formula
or
to
the
ordinary
and
grammatical
sense
of
the
words.
It
had
to
be
determined
whether
the
subtraction
of
a
negative
amount
could
increase
the
threshold
amount
or
whether
the
negative
amount
could
never
be
less
than
zero
in
calculating
the
allowance.
It
is
submitted
that
in
this
case,
there
is
no
such
question
as
to
whether
a
technical
application
or
an
ordinary
and
grammatical
application
is
to
be
used.
Parliament's
intention
in
passing
section
63
can
surely
be
seen
to
be
that
only
the
spouse
with
the
higher
income,
except
in
limited
circumstances,
could
claim
the
child
care
expenses.
It
would
be
a
frustration
of
this
intent
if
the
supporting
person
with
nil
income
of
a
taxpayer
would
prevent
subsection
(2)
from
operating
to
deny
the
higher
income
taxpayer
the
child
care
expense
deduction.
As
I
see
it,
the
point
at
issue
has
been
determined
by
this
Court
in
a
recent
judgment
of
Chief
Judge
Couture
—
Normand
Fiset
v.
M.N.R.,
[1988]
1
C.T.C.
2335;
88
D.T.C.
1223,
in
which
the
Chief
Judge
reached
the
conclusion
that
under
circumstances
where
the
“supporting
person"
had
no
income,
that
subsection
63(2)
of
the
Act
did
not
apply.
The
appeal
is
allowed
and
the
matter
referred
back
to
the
respondent
for
reconsideration
and
reassessment.
The
appellant
is
entitled
to
party
and
party
costs.
Appeal
allowed.
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