Date:
20021028
Docket:
2001-3255-IT-I
BETWEEN:
HOWIE A.
HEWKO,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent,
ATTORNEY
GENERAL OF ALBERTA,
Intervenor.
Reasons
for Judgment
Bowie
J.
[1]
I heard this appeal on February 21, 2002. On July 2, 2002, I
ordered that notice should be given to the Attorneys General of
the provinces under section 57 of the Federal Court Act
that the validity of section 34 (now section 41) of the
Maintenance Enforcement Act (MEA) of Alberta had been called into
question. Only the Attorney General of Alberta expressed an
intention to make submissions. The hearing of the appeal was
resumed by telephone conference for that purpose on October 17,
2002, along with the appeal of Fraser v. The Queen in which the identical
issue had arisen. The Attorney General of Canada and the Attorney
General of Alberta made submissions. The Appellant was invited to
make submissions but chose not to.
[2]
Section 41 of the MEA provides:
For the
purposes of the Income Tax Act (Canada) a spouse includes
a person who is required to make periodic payments in respect of
maintenance under a written agreement or a maintenance
order.
[3]
At the time I made the Order referred to above, I gave Reasons in
which I concluded that the child maintenance payments made by the
Appellant under a written agreement which had been filed in the
Alberta Court of Queen's Bench under the MEA would not
be deductible in the computation of his income unless he could
establish that he and the recipient of the payments were, or had
at some time been, spouses. This, of course, brought section 41
of the MEA into issue. If that provision is valid and
operative then the Appellant is entitled to succeed in this
appeal.
[4]
It is trite that the legislatures of the provinces cannot
legislate beyond the powers granted to them in section 92 of the
Constitution Act, 1867. Those powers do not include the
amendment of federal legislation validly enacted under section
91. Counsel for the Attorney General of Alberta accepted in the
course of his submission that section 41 of the MEA could
not have that effect. His position was that it was enacted at a
time when the Income Tax Act of Canada provided in
paragraph 60(c.1) of the Income Tax Act for the
deduction of payments of child support made pursuant to an order
of a competent tribunal to "an individual within a
prescribed class of persons described in the laws of a
province". It was by this cumbersome legislative mechanism
that Parliament sought to deal with the question of the
deductibility of maintenance payments made by one common-law
spouse to the other. For those provinces where there was a
legislated recognition of the relationship, the class described
by provincial law could be prescribed by order-in-counsel.
Alberta's position is that section 41 of the MEA was
intended to describe a class of persons which could then be
prescribed, and nothing more. In view of counsel's concession
that section 41 was spent upon the amendment of paragraph
60(c.1) of the Income Tax Act to remove the
reference to a class of persons described in provincial
legislation, and that it is now ineffective, it is unnecessary
for me to inquire further into its constitutional validity. It is
difficult, however, not to wonder how the drafter could have
thought that section 41 of the MEA described a class of
persons, and also why section 41
was recently consolidated and renumbered as part of Alberta's
Revised Statutes 2000.
[5]
Counsel for Alberta also brought to my attention an unreported
decision of the Alberta Court of Queen' Bench wherein Smith J.
held that a maintenance order made by the Provincial Court of
Alberta, once filed in the Court of Queen's Bench, can only
be varied by that Court, by reason of the deeming provision found
in subsection 12(1) of the MEA. This, he said, supported
the view taken by Teskey J. in Hollands v. The
Queen. I do not agree. As I
said in paragraphs 7 and 8 of my earlier Reasons in this matter,
the deeming provisions are restricted in their operation to the
scope and purpose of the MEA. That is because the Alberta
legislature clearly expressed that intention. The orders that
were before Smith J., although made under the Domestic
Relations Act of Alberta, were filed under, and so were being
enforced under, the MEA. Nothing in his decision conflicts
with the Reasons that I gave on July 2, 2002.
[6]
I must dismiss this appeal. Before leaving the matter, though, I
cannot help but observe that it is a peculiar legislative policy
that leads Parliament to provide a deduction in the computation
of income to the non-custodial parents of children, where no
spousal relationship is involved, if they resist fulfilling their
responsibility and are later required to do so by a court order,
while denying the deduction to those who volunteer to carry their
share of the financial burden of parenthood by entering into a
support agreement. It must be a rare individual who is
sufficiently astute, or well advised, to insist upon having a
consent order made to implement his voluntarily assumed
obligation.
Signed at
Ottawa, Canada, this 28th day of October, 2002.
J.T.C.C.
COURT FILE
NO.:
2001-3255(IT)I
STYLE OF
CAUSE:
Howie A. Hewko and
Her Majesty
the Queen and
Attorney General of Alberta
PLACE OF
HEARING:
Edmonton, Alberta and Ottawa, Ontario
DATE OF
HEARING:
February 21, 2002 and October 17, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge E.A.
Bowie
DATE OF
JUDGMENT:
October 28, 2002
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Margaret McCabe
Counsel for
the
Intervenor:
Rod Wiltshire
COUNSEL OF
RECORD:
For the
Appellant:
Name:
N/A
Firm:
N/A
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the
Intervenor:
Rod Wiltshire
2001-3255(IT)I
BETWEEN:
HOWIE A.
HEWKO,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent,
and
ATTORNEY
GENERAL OF ALBERTA,
Intervenor.
Appeal heard
on February 21, 2002, at Edmonton, Alberta, and
by telephone
conference on October 17, 2002, at Ottawa, Ontario, by
the
Honourable Judge E.A. Bowie
Appearances
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Margaret Irving and Margaret McCabe
Counsel for the
Intervenor:
Rod Wiltshire
JUDGMENT
The appeal
from the reassessment of tax made under the Income Tax Act
for the 1999 taxation year is dismissed.
Signed at
Ottawa, Canada, this 28th day of October, 2002.
J.T.C.C.
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