Somers D.J.T.C.:
1 This appeal was heard at Ottawa, Ontario, on September 18, 1996.
2 The appellant is appealing a notice of assessment by the Minister of National Revenue (the “Minister”) for the 1994 taxation year. The grounds for the appeal are as follows:
[TRANSLATION]I have always claimed (rightly) the child care expenses of my two sons and the deduction has always been granted to me, at least until December 18, 1995, when I received a notice of reassessment from Revenue Canada for 1994.
I am the sole support of my two sons. The Supreme Court of Ontario awarded me sole custody of my two sons in the divorce decree rendered on January 18, 1991. I am also the recipient of both the Quebec and federal family allowances. Lastly, I alone pay all the child care expenses (and other living expenses) of my two sons and the receipts attest to this fact.
I receive no alimony from my former spouse and I receive no financial assistance from my spouse with regard to the payment of the child care expenses of my sons (and other living expenses).
My spouse and I live as a “reconstituted” family and are separately responsible for paying the child care expenses of our respective children. We keep separate accounting and the receipts attest to this fact.
My province of residence, Quebec, permits a spouse to waive his credit for child care expenses in the other spouse's favour.
I find it unfair that Revenue Canada arbitrarily “chooses” the spouse with the lowest net income as the beneficiary of the child care expense deduction without regard to the spouse who in fact pays the child care expenses. Revenue Canada is clearly attempting to maximize its tax revenues at the taxpayer's expense. In light of Revenue Canada's failure to give the freedom to chose to claim the deduction (credit) to either of the spouses (e.g. election to waive the tax credit in favour of the other spouse in Quebec), it would at the very least be fair and equitable for the spouse who pays the child care expenses to be able to claim the related deduction.
3 The following facts enumerated in paragraph 7 of the Reply to the Notice of Appeal on which the Minister relied in making the assessment were admitted or denied by the appellant and read as follows:
[TRANSLATION](a) the appellant was divorced in 1992; (admitted)
(b) in 1993, the appellant entered into a second marriage and married Lise Dumas (the “spouse”); (admitted)
(c) the appellant lived with his spouse during the 1994 taxation year; (admitted)
- (d) the appellant claimed a child care expense deduction of $4,577.00 for the 1994 taxation year in respect of his two eligible children:
André-Michel, born on September 21, 1984, and
Jean-François, born on June 24, 1986; (admitted)
(e) these child care expenses were paid by the appellant or by the spouse; (paid by the appellant only - admitted)
(f) during the 1994 taxation year, the spouse was a “supporting person” of those two eligible children within the meaning of subsection 63(3) of the Income Tax Act (the “Act”); (admitted)
(g) the appellant's net income for the 1994 taxation year before the child care expense deduction was $57,005.00; (admitted)
(h) the spouse's net income for the 1994 taxation year before the child care expense deduction was $38,512.00; (admitted)
- (i) during the period in which the child care expenses were incurred, the spouse was not: (to be proven)
(i) a person attending a designated educational institution, (no)
(ii) a person certified by a medical doctor to be a person who by reason of mental or physical infirmity was incapable of caring for his children, (no)
(iii) a person confined to a prison or similar institution throughout a period of not less than two weeks in 1994, or (no)
(iv) a person who, by reason of a breakdown of her marriage, was living separate and apart from the appellant at the end of 1994 and for a period of at least 90 days beginning in the year in question; (no)
(j) child care expenses may be deducted only by the spouse with the lower income, in this instance the spouse; (knew nothing)
(k) the appellant may not deduct an amount in respect of child care expenses in computing his income for the 1994 taxation year. (knew nothing)
4 The point at issue is whether, in computing his income for the 1994 taxation year, the appellant could deduct an amount of $4,577 in respect of child care expenses under subsection 63(1) of the Income Tax Act (the “Act”).
5 The appellant admitted the purport of subsection 63(2) of the Act, that this deduction is usually claimed solely by the spouse with the lower net income.
6 In certain cases, the spouse with the higher net income may claim child care expenses. These exceptions under subsection 63(2) of the Act include periods during which his wife was not:a person attending a private educational institution;
a person certified by a medical doctor to be a person who by reason of mental or physical infirmity was incapable of caring for her children;
a person confined to a prison or similar institution throughout a period of not less than two weeks in 1994;
a person who, by reason of a breakdown of her marriage, was living separate and apart from the appellant at the end of 1994 and for a period of at least 90 days beginning in the year in issue.
7 The appellant answered no to these four exceptions. He may therefore not avail himself of the exceptions provided for under subsection 63(2) of the Act.
8 In support of his appeal, the appellant argued the provisions of subsection 15(1) of the Canadian Charter of Rights and Freedoms, which provides:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
9 In Druken v. Canada (Employment & Immigration Commission) (1987), 87 C.L.L.C. 17,030 (Can. Human Rights Trib.), the tribunal wrote as follows: “The justification must be a question of fact in each situation and not merely a blanket application to a particular group of individuals.”
10 There can be no discrimination against the appellant in the instant case. The same principle applies to both sexes: the distinction is made on the basis of the spouses' financial situations. The Act may be more costly for one individual than another, but it is not necessarily discriminatory. In order to govern effectively, Parliament must treat certain individuals or groups differently.
11 There can be no discrimination in the instant case because the Act provides for exceptions in subsection 63(2). Unfortunately, as a result of the evidence by admissions, the appellant may not benefit from those exceptions.
12 In Collins v. R. (1994), [1995] 1 C.T.C. 2819 (T.C.C.), court file no. 94-1008(IT)I, Judge Kempo of this Court wrote:
In my view the appellants' family status cannot be described as being disadvantaged in the context of its place in the entire social, political and legal fabric of our society, nor is it describable as a distinct and insular minority within the contemplation of subsection 15(1) of the Charter.
13 For the aforementioned reasons, I cannot subscribe to the argument that there is discrimination under the Act.
14 The appeal is accordingly dismissed.
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