McArthur T.C.J.:
The Appellant appeals the Minister of National Revenue’s decision to disallow the expenses of $10,011.22 sought by the Appellant in computing her 1995 taxation year pursuant to subsection 118.2(1) of the Income Tax Act (the “Act”), determining that the amount was not medical expenses as defined in subsection 118.2(2) and in particular that the travel expenses were not incurred in respect of the patient or of an individual who accompanied the patient incapable of travelling without assistance of an attendant to obtain medical services.
The Appellant lives with her family in Whitehorse, Yukon where this
hearing took place. The facts are tragic and upon the Appellant’s request a ban of confidentiality is placed on the transcript of the trial evidence.
Evidence was presented by the Appellant and her husband, Gregory
Bryce. They are highly intelligent, caring, compassionate and articulate parents of the Appellant’s adoptive daughter Sarah. They also have six other children. Twenty year old Sarah, a native Indian, was born with Fetal Alcohol Syndrome to a 15 year old mother and adopted by the Appellant shortly after birth.
The facts will remain brief. During her first 12 years Sarah was sick and hospitalized “over 100 times”. She has led a troubled life from birth. From the age of 12 in 1990 she commenced a journey that included alcohol and substance abuse, self abuse, suicide attempts and abuse by others. Whether under the influence of drugs or not she was very vulnerable to the influence of her peers and required intensive supervision.
About January 1, 1995, she was admitted to Foothills Hospital in Calgary under the care of Dr. Wilkes. On January 4, 1995, he wrote the following:
It was necessary for Gregory and Sandra Bryce (Sarah’s stepfather and mother) to stay in Calgary on January 1, 2, 3, 4 and 5, 1995 to have her admitted to the Young Adult Program at the Foothills Hospital, to be interviewed by myself and other staff on each day, and to work with us in forming a treatment/care plan.
It will be important to conduct ongoing family meetings every three to four weeks with Sarah’s mother and stepfather. Matt, her brother, should visit her regularly from Cranbrook. I would strongly advocate for financial assistance regarding travel and living expenses for Sarah’s family.
On July 18, 1995, Dr. Wilkes wrote the following:
Sarah continues to be involved in treatment for her substance abuse, post traumatic stress disorder and attention deficit difficulties. It has been necessary for Gregory and Sandra Bryce to visit Calgary regularly to meet with the different treatment team leaders at Eagle Moon Lodge and attend the different case review meetings. These dates include: March 23-27, April 13-18, May 5-9 and June 15-20.
These meetings will still continue to be relevant to Sarah’s treatment and wellbeing over this next year and the proposed treatment period for Sarah. I hope you will support the Bryce’s application for financial support regarding their travel and living expenses.
Sarah was admitted to Wood’s Homes - Bowness Treatment Centre August 1 to August 31, 1995. In a report the Clinical Coordinator wrote in part:
IV. Family
Relations as before, remain very close. It was decided that Sarah would talk to her mother on the phone Wednesdays and Sundays. Sarah found it difficult at first but she eventually accepted it. Sarah’s mother had concerns that Sarah was too dependent on her and believed that limiting contact to twice weekly would be in Sarah’s best interest. Sandy remained in regular contact with Sarah’s therapist and case manager on a weekly basis via regularly scheduled teleconference calls. Sandy is very committed to supporting Sarah through her treatment and preparing her to return home.
The Appellant claims as medical expenses, travelling costs to visit Sarah in Calgary, at times with her husband and children, on 12 occasions in 1995. Presently, it would appear that Sarah’s condition is much more stable. She lives at home with her parents. The Appellant also claimed the cost of telephone calls in 1995 to Sarah and to those responsible for her care in the amount of $4,000.
In the Notice of Appeal, Gregory Bryce stated:
I believe that my daughter’s situation, as described, constituted a severe and prolonged impairment which markedly restricted her ability to perform a basic activity of daily living - namely, that her alcohol addiction, suicidal thoughts and actions, depression, Post-Traumatic Stress and Fetal Alcohol Effect, among other conditions, severely impaired her ability to perceive reasonably and realistically. Sec. 118.4(1): (a), (b) and (c)(l).
I also believe that my and my family’s expenses to travel to Calgary and to talk to my daughter by telephone were an essential component of her care and treatment, were deemed so in writing by her psychiatrist, and should be treated the same as the costs of care or training at a school, institution or other place. Sec.
118.2(2)(e); 118.2(2)(g) and (h).
Applying the criteria in section 118.4, the Appellant states she qualifies for a disability tax credit pursuant to subsection 118.3. She is a social worker who has become very knowledgeable in the treatment required for Sarah. This treatment includes as a necessary component, a supportive family.
Position of the Respondent
The Appellant claimed medical expenses that are not found as medical expenses in subsection 118.2(2) of the Act. Subsection 118.3 does not apply because there was no medical certificate as required and the criteria in sub- section 118.4(1) are not met.
Legislation
Subsection 118.2(1) reads in part:
(1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount [...]
Subsection 118.2(2) reads in part:
(2) For the purposes of subsection (1), a medical expense of an individual is an amount paid
[..)
(e) for the care, or the care and training, at a school, institution or other place of the patient, who has been certified by an appropriately qualified person to be a person who, by reason of a physical or mental handicap, requires the equipment, facilities or personnel specially provided by that school, institution or other place for the care, or the care and training, of individuals suffering from the handicap suffered by the patient;
[ •••]
Analysis
Sarah suffers from a multiplicity of factors affecting her mental state which include the effects of fetal alcohol syndrome manifesting as attention deficit disorder, depression and the effects of a chaotic lifestyle involving substance abuse and experiencing a variety of stressful events including extreme assault. In 1995, she was given Depo-Provera injections for contraception and as a mood stabiliser. Without constant care, in 1995, her life was in danger. An example of this is found in the report of Carole Sundborg who wrote the following on page 3 of her report:
August 12, 1995
(Sarah) left without telling caregiver at 11:30 p.m. Met boyfriend at designated spot and proceeded to drink hair spray during which time Sarah jumped into the river and her boyfriend pulled her out. He threatened to get hit by an oncoming train and Sarah stated that if he didn’t stop this behaviour, she would stand on the tracks with him and she too would be hit by the train. A third person there pushed her off the tracks and avoided the train. Her boyfriend was hit and was hospitalized, suffering a severed liver.
The illness Sarah suffers is not yet fully understood by the medical profession and, of course, Revenue Canada and this judge. It is severe and has numerous symptoms requiring support, supervision and care of trained personnel.
In applying paragraph 118.2(2)(e), humanely and with an attempt to achieve the intention of the Legislature, I find that the Appellant incurred medical expenses for the care of Sarah at the institutions in which she resided in 1995 in Calgary. Dr. Wilkes, an appropriately qualified person, certified Sarah to be a person who by reason of mental handicap required the personnel, including her parents for her care and training. With an extraordinary dedication the Appellant, who is a professional social worker, received the training necessary from the Calgary institutions to qualify under the meaning of personnel in paragraph 118.2(2)(e).
Each case depends on its own facts and to a degree on the Court’s perception of facts as applied to the legislation. I have arrived at the conclusion, based on the evidence and on a compassionate interpretation of what I feel Parliament intended in paragraph 118.2(2)(e). The decision must be based not only on the facts but on legal principles.
For those principles I have relied heavily on the reasoning of Bowman, J. in Radage v. R. (1996), 96 D.T.C. 1615 (T.C.C.) wherein at page 1625, dealing with subsection 118.3, he stated:
[..)
(a) The legislative intent appears to be to provide a modest amount of tax relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to everyone who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.
(b) The court must, while recognizing the narrowness of the tests enumerated in sections 118.3 and 118.4, construe the provisions liberally, humanely and compassionately and not, narrowly and technically. In Craven v. The Queen, 94-2619(IT)I, I stated:
The application of the inflexible tests in section 118.4 leaves the court no room to apply either common sense or compassion in the interpretation of the disability tax credit provisions of the Income Tax Act - provisions that require a compassionate and common sense application.
In my view I stated the test unduly narrowly in that case. I have heard many disability tax credit cases since that time and my thinking has evolved. [...] If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provision must be given a humane and compassionate construction. Section 12 of the Interpretation Act reads as follows:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
(c) If there is doubt on which side of the line a claimant falls, that doubt should be resolved in favour of the claimant.
[...]
While Judge Bowman was referring to the disability tax credit, section 118.3, I find his reasoning applies equally and as stated by him, to the present situation and subsection 118.2(2).
In addition to the amounts allowed by the Minister the travel expenses in the net amount of $6,012 are allowed. The amount for telephone costs is not allowed. Telephone costs are not provided in the medical expenses enumerated in subsection 118.2(2).
While Sarah’s impairment may have entitled the Appellant to successfully make a claim under section 118.3 of the Act, this approach was an after thought of Mr. & Mrs. Bryce and no certificate in prescribed form, as required by paragraph 118.3(l)(a.2) was provided. This claim fails.
In conclusion, the appeal is allowed to permit the further allowance of $6,012 in medical expenses in excess of the amount allowed by the Minister for the 1995 taxation year. No order is made with respect to costs.
Appeal dismissed.
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