Ronald Maurice Adams v. Minister of National Revenue, [1981] CTC 2543, 81 DTC 504

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.