D
E
Taylor—This
is
an
appeal
heard
in
the
City
of
Vancouver,
British
Columbia,
on
May
4,
1981,
against
an
income
tax
assessment
for
the
year
1978
in
which
the
Minister
of
National
Revenue
disallowed
as
a
deduction
the
claim
made
for
a
dependent
child.
In
filing
the
relevant
income
tax
return,
the
appellant
stated
as
follows:
Sec.
109(1)(d)
of
the
Income
Tax
Act
allows
a
deduction
for
a
child
of
the
individual
who
was
dependent
upon
him
for
support.
Sec.
109(3)
deems
a
child
to
be
dependent
upon
his
father.
The
word
child
is
not
defined
in
the
Income
Tax
Act,
for
the
purposes
of
the
Act,
but
a
legal
meaning
would
appear
to
be
a
“person
under
the
age
of
21
years”.
Further
the
word
person,
has
the
meaning
of
“someone
who
has
rights
and
obligations”.
There
is
no
question
that
a
child
is
a
child
prior
to
birth,
both
from
a
medical
and
legal
standpoint,
and
that
it
has
rights
and
obligations
from
the
moment
of
conception,
and
therefore
is
a
person
at
that
point,
and
is
therefore
a
child
within
the
meaning
of
the
Income
Tax
Act,
at
that
point
in
time.
During
1978,
my
wife
conceived.
The
child
has
not
yet
been
born,
but
I
am
deducting
it
in
accordance
with
the
above
mentioned
legal
principles.
The
reply
of
the
respondent
noted:
—
The
appellant’s
wife
conceived
a
child
in
the
appellant’s
1978
taxation
year
which
child
was
not
born
in
that
year;
—
The
unborn
child
was
not
wholly
dependent
upon
the
appellant
in
the
1978
taxation
year;
—
A
conceived
but
unborn
child
is
not
a
child
within
the
meaning
of
paragraph
109(1
)(d)
of
the
Income
Tax
Act.
Counsel
for
the
parties
agreed
that
the
facts
were
not
in
dispute
and
argued
the
case
strictly
on
the
application
of
the
law.
Reference
was
quickly
made
to
the
case
of
Carolyn
F
Halliday
v
MNR,
[1979]
CTC
2852;
79
DTC
715,
in
which
a
similar
matter
was
decided
by
the
Board
against
the
appellant.
It
was
noted
by
counsel
for
the
appellant
that
legal
arguments
in
support
of
the
appellant’s
basic
proposition
(that
fetus
was
a
child)
had
not
been
presented
in
Halliday,
and
counsel
proceeded
to
do
so
in
this
matter.
The
case
law
and
other
detail
(in
addition
to
Halliday
(supra))
referenced
by
counsel
for
the
appellant
included:
Halsbury’s
Laws
of
England,
3rd
ed
1960,
Volume
36,
paragraphs:
583,
585,
587,
590;
Bis
v
Bis,
[1972]
3
OR
699;
Arthur
L
Smoke
v
MNR,
[1969]
Tax
ABC
614;
69
DTC
475;
Françoise
Sévigny
v
MNR,
[1971]
Tax
ABC
776;
71
DTC
507;
Lazar
Sarvan
v
MNR,
[1971]
Tax
ABC
527;
71
DTC
370;
David
S
Drever
v
MNR,
[1971]
Tax
ABC
266;
70
DTC
1168;
Smith
et
al
v
ICBC,
21
BCLR
317;
Jackson
v
Voss,
[1923]
3
KB
375;
Maxwell
on
Interpretation
of
Statutes,
11th
ed,
p
31;
Midland
Rwy
v
Robinson
(1890),
15
App
Cas
19,
34,
Lord
Provost
of
Glasgow
v
Farie
(1888),
13
App
Cas
657;
Ker
v
Kennedy,
[1942]
1
KB
409,
413;
Webster’s
New
Collegiate
Dictionary,
1973
1st
ed;
Oxford
Illustrated
Dictionary;
New
English
Dictionary,
1892
p
341;
Stedman’s
Medical
Dictionary,
4th
ed.
1976;
Black’s
Law
Dictionary,
5th
ed
1979;
Jowitt’s
Dictionary
of
English
Law,
1959
1st
ed;
Dehler
(1979),
25
OR
(2d)
748;
Bonsor
v
Musician’s
Union,
[1956]
AC
104;
Criminal
Code,
RSC
1970,
c.
34;
R
v
Marsh,
52/79
Victoria
Registry
November
7,
1979,
County
Court
of
Vancouver
Island
at
Victoria;
Villar
v
Gilby,
[1907]
AC
139;
Re
Hendrie,
[1969]
1
OR
673;
Tennant
v
Smith,
[1892]
AC
150;
Doe
v
Clarke,
126
ER
617;
Thelluson
v
Woodford,
31
ER
117;
Wallis
v
Hodson,
26
ER
472;
Montreal
Tramways
v
Leveille,
[1933]
4
DLR
337;
Duval
v
Seguin,
[1972]
2
OR
686;
New
American
Standard
Bible:
Exodus
21:22-25
Coke,
LC,
Institutes;
Blackstone’s
Commentaries;
Lord
Ellenborough’s
Act
1802
(Miscarriage
of
Women
Act);
Family
Relations
Act,
RSBC
C
121,
s
21;
In
re
Kirkpatrick
and
Moroughan,
60
OLR
495;
[1927]
3
DLR
546;
The
Family
and
Children’s
Law
Commission
of
British
Columbia,
Report
V,
Vancouver
March
1975;
Child
at
Risk,
A
Report
of
the
Standing
Senate
Committee
on
Health,
Welfare
and
Science;
Ottawa;
Halsbury’s
Laws
of
England,
3rd
ed,
1960,
para
594;
Income
Tax
Act,
1978-79,
TR-32;
IT-349;
Halsbury’s
Laws
of
England,
3rd
ed,
1960,
para
633;
Jussa
v
Jussa,
[1972]
2
All
ER
600.
Counsel
noted
that
his
effort
was
designed
to
persuade
the
Board
that
the
term
“child”
in
paragraph
109(1
)(d)
of
the
Income
Tax
Act
included
“fetus”
for
purposes
of
that
Act,
but
that
he
was
not
proposing
that
for
all
situations
and
all
cases
at
law
that
the
fetus
was
to
be
equated
with
child.
It
was
therefore
for
him
the
narrow
specific
issue
—
as
child
should
be
understood
and
accepted
for
deductibility
under
paragraph
109(1)(d)
of
the
Income
Tax
Act
and
no
more,
at
this
point
in
time.
Essentially,
his
argument
pointed
out
that
the
term
“child”
have
a
very
wide
range
of
meanings
which
could
include
the
“unborn”
as
well
as
the
“born”
child
according
to
the
jurisprudence
cited.
With
that
jurisprudence
as
background,
it
was
available
to
the
Board
to
accept
dictionary
definitions
of
the
term
“child”,
according
to
counsel’s
view.
As
to
the
basic
question
of
“dependency”,
counsel
for
the
appellant
took
the
position
that
subsection
109(3)
of
the
Act
clearly
made
it
a
presumption
that
the
child
was
“wholly
dependent”
on
the
father
—
and
it
was
for
the
Minister
to
refute
that
presumption,
not
for
the
appellant
to
prove
it.
The
Board
raised
with
counsel
a
question
regarding
his
view
on
the
term
“under
21
years
of
age”,
to
be
found
in
subpargraph
109(1
)(d)(i)
of
the
Act
—
to
which
counsel
replied
that
it
was
largely
technical
in
that
sense,
not
having
a
direct
bearing
on
the
issue.
In
counsel’s
view,
the
fetus
in
question
was
clearly
under
21
years
of
age.
Counsel
for
the
respondent
also
dealt
with
the
same
three
basic
points:
—
“child”
—
did
not
include
“fetus”
for
purposes
of
the
Act.
While
counsel
for
the
appellant
had
demonstrated
that
there
was
a
wide
range
of
interpretation
into
which
the
term
“child”
might
fall
—
including
in
certain
circumstances
the
“unborn”
child,
that
only
served
to
support
the
Minister’s
assessment,
not
to
overturn
it.
Since
the
claim
made
by
the
appellant
was
under
an
“exempting”
or
“deduction”
section,
the
narrowest,
not
the
most
extreme
definition
must
be
applied,
and
that
served
to
commence
at
birth,
not
conception.
In
addition,
in
reference
to
the
Family
Allowance
Act,
counsel
noted
that
qualification
for
the
allowance
(which
is
taxable
income
under
the
Act)
included
“.
..
who
was
born
in
Canada
and
has
been
a.
resident
since
birth”.
Particular
emphasis
was
placed
by
counsel
on
the
words
I
have
underlined
in
the
phrase
immediately
above.
—
“wholly
dependent”
—
the
father
could
not
directly
support
the
fetus,
and
accordingly
the
“unborn”
child
could
not
be
wholly
dependent
upon
him
for
support
—
particularly
financial
support.
—
“under
21
years
of
age”
—
the
interpretation
to
be
placed
on
this
should
be
that
the
“years”
commenced
at
birth,
not
at
conception.
I
am
impressed
with
the
meticulous
effort
put
forward
by
counsel
for
the
appellant
in
researching
the
law
on
this
subject,
in
order
to
overcome
the
obstacle
noted
in
“Halliday”
(supra).
However,
I
do
not
find
any
assurance
in
the
jurisprudence
quoted
which
would,
with
certainty,
establish
that
the
intent
of
Parliament
for
the
word
“child”
in
the
relevant
section
of
the
Act
was
to
include
an
“unborn”
child
or
“fetus”
for
purposes
of
a
deduction.
The
situation
facing
this
appellant
is
that
the
Minister
has
taken
the
position
that
the
time
frame
which
is
relevant
commences
at
birth
and
while
this
position
obviously
is
as
difficult
for
the
Minister
to
prove,
as
it
is
for
the
appellant
to
overturn,
it
remains
to
the
appellant
to
positively
overturn
it.
I
am
impressed
with
the
point
made
by
counsel
for
the
respondent
that
in
the
absence
of
specific
judicial
authority
to
the
contrary,
the
Board
must
interpret
the
term
“child”
as
found
in
the
exempting
paragrpah
109(1
)(d)
in
a
narrow
rather
than
a
liberal
manner.
That
is
the
position
I
adopt
for
purposes
of
this
appeal
and
this
excludes,
for
purposes
of
the
deduction
claimed,
the
taxation
period
before
the
birth
of
the
child.
It
should
also
be
noted
that
the
argument
of
counsel
for
the
respondent
is
very
compelling
—
that
the
“unborn”
child
was
not
wholly
dependent
upon
the
father,
but
if
wholly
dependent
on
anyone,
it
would
be
upon
the
mother
during
the
period
of
conception.
Further,
I
cannot
feature
the
words
“years”
and
“age”
in
the
phrase
“under
21
years
of
age”
as
lending
much
support
to
the
contention
of
this
appellant
—
in
effect
that
the
“years
of
age”
would
start
before
actual
birth.
The
Board
is
careful
to
repeat
the
comment
made
in
Halliday
(supra),
that
this
decision
is
not
to
be
taken
as
an
indication
that
the
“fetus”
may
not
have
certain
rights
and
characteristics
associated
directly
with
the
status
of
“child”
under
other
circumstances.
This
decision
only
points
out
that
the
legal
arguments
proposed
that
a
“child”
for
purposes
of
the
Income
Tax
Act
should
include
the
“fetus”
have
not
been
persuasive.
The
appeal
is
dismissed.
Appeal
dismissed.