Christie
A.C.J.T.C.:—This
appeal
is
governed
by
the
informal
procedure
prescribed
by
section
18
and
following
sections
of
the
Tax
Court
of
Canada
Act.
The
year
under
review
is
1992.
The
issues
are
whether
in
respect
of
that
year
the
appellant
is
entitled
to
deduct
the
equivalent
to
married
amount
and
whether
paragraph
118(1
)(a)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
’’Act”)
infringes
on
rights
of
the
appellant
guaranteed
by
the
Canadian
Charter
of
Rights
and
Freedoms
(’’the
Charter”).
The
notice
of
appeal
reads:
Amount
in
issue:
$915
Reason
for
appeal-Revenue
Canada
disallowed
my
claim
for
married
amount
because
I
live
in
a
common-law-relationship
and
am
not
formally
married.
Ground
for
appeal-As
stated
in
enclosed
notice
of
objection
originally
sent
to
Revenue
Canada.
In
addition
I
also
submit
that
my
rights
under
section
7
of
the
Charter
have
been
violated
because
of
this
arbitrary
refusal
of
the
married
amount
in
my
case.
Attached
to
the
notice
of
appeal
are
the
notice
of
assessment,
the
notice
of
objection
thereto
and
the
notification
of
confirmation
by
the
Minister
of
National
Revenue.
It
is
unnecessary
to
cite
the
assessment
or
the
confirmation
for
the
purpose
of
these
reasons.
It
is
sufficient
to
reproduce
that
portion
of
the
objection
that
appears
under
the
heading
"Statement
of
Facts
and
Reasons”:
I
have
been
disallowed
my
claim
for
the
married
amount.
Myself
and
Leslie-Ann
Clarke
have
lived
together
as
man
and
wife
since
the
time
from
which
the
married
amount
has
been
claimed.
As
she
has
never
worked,
I
have
always
fully
supported
her.
To
disallow
my
claim
for
the
married
amount
simply
because
we
are
not
technically
married
infringes
my
right
to
equal
treatment
before
the
law
as
guaranteed
by
section
15
of
the
Canadian
Charter
of
Rights
and
Freedoms.
This
aspect
of
the
assessment
is
quite
apart
from
my
constitutional
rights,
an
unfair
and
illogical
application
of
taxation
principles.
I
have
enclosed
a
cheque
for
$2,107.12.
I
have
simply
readjusted
my
tax
credits
to
include
the
married
amount
as
originally
claimed.
Paragraphs
1
to
5
inclusive
of
the
reply
to
the
notice
of
appeal
read:
1.
He
admits
the
copies
of
the
notice
of
assessment
dated
July
9,
1993
and
the
notification
of
confirmation
and
related
correspondence
dated
February
25,
1994
attached
to
the
appellant’s
notice
of
appeal.
2.
He
denies
all
other
allegations
of
fact
contained
in
the
appellant’s
notice
of
appeal.
3.
In
computing
income
for
the
1992
taxation
year,
the
appellant
claimed
an
amount
of
$5,380
as
an
equivalent
to
married
amount
in
the
calculation
of
non-refundable
tax
credits.
4.
In
assessing
the
appellant
for
the
1992
taxation
year,
by
notice
of
assessment
mailed
July
9,
1993,
the
Minister
of
National
Revenue
(the
’’Minister”)
disallowed
the
claim
for
the
equivalent
to
married
amount.
5.
In
so
assessing
the
appellant,
the
Minister
made
the
following
assumptions
of
fact:
(a)
the
appellant
is
an
unmarried
person
who
is
living
with
Leslie-Ann
Clarke
in
a
common-law
relationship;
(b)
the
appellant
is
an
unmarried
person
or
a
married
person
who
neither
supported
nor
lived
with
his
spouse
and
is
not
supported
by
his
spouse.
Section
7
of
the
Charter
provides:
7.
Everyone
has
the
right
to
life,
liberty
and
security
of
the
person
and
the
right
not
to
be
deprived
thereof
except
in
accordance
with
the
principles
of
fundamental
justice.
Subsection
15(1)
of
the
Charter
provides:
15(1)
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.
With
respect
to
section
7
of
the
Charter
the
appellant
relies
in
particular
on
the
phrase
"security
of
person".
His
position
is
that
his
financial
security
is
undermined
by
the
legislation.
I
cannot
accept
this
construction
of
section
7
in
the
context
that
it
is
made
and
I
know
of
no
authority
that
supports
it.
This
aspect
of
the
appeal
fails.
Turning
now
to
subsection
15(1)
the
evidence
at
trial
was
very
brief.
It
simply
consists
of
the
allegation
that
at
the
relevant
time
the
appellant
had
a
common-law
relationship
with
Leslie-Ann
Clarke,
1.e.,
they
were
living
together
in
a
conjugal
relationship
outside
of
marriage
and
this
led
to
the
assessment
under
appeal.
There
is
no
disagreement
about
these
facts
on
the
part
of
counsel
for
the
respondent.
Schachtschneider
v.
Canada,
[1993]
2
C.T.C.
178,
93
D.T.C.
5298
(F.C.A.)
is,
in
my
opinion,
very
relevant
to
this
appeal.
The
facts
and
issues
in
that
case
are
accurately
set
out
in
this
extract
from
the
headnote:
The
taxpayer
was
married
and
was
living
with
her
spouse,
but
was
not
supporting
him
during
her
1989
taxation
year.
In
assessing
her
for
that
year,
therefore,
the
Minister
disallowed
her
claim
for
the
’’equivalent
to
married”
non-refundable
tax
credit
with
respect
to
a
child
of
her
marriage
born
during
1988.
Instead,
the
Minister
allowed
her
a
"dependent
child”
tax
credit
with
respect
to
that
child.
The
result
was
that
the
taxpayer
and
her
husband
together
paid
more
income
tax
for
1989
than
they
would
have
had
to
pay
had
they
been
living
together
and
unmarried,
all
other
circumstances
remaining
the
same.
Alleging
that
this
result
(brought
about
by
the
provisions
of
subsection
118(1)
of
the
Act)
infringed
her
entitlement
to
freedom
of
religion
and
conscience
(paragraph
2(a)
of
the
Charter)
as
well
as
her
entitlement
to
freedom
from
discrimination
on
the
enumerated
ground
of
discrimination,
"religion”
and
on
an
analogous
ground,
"marital
status”,
the
taxpayer
appealed
to
the
Tax
Court
of
Canada.
Her
appeal
was
dismissed
and
she
applied
to
the
Federal
Court
of
Appeal
for
a
judicial
review
of
the
Tax
Court’s
findings.
At
the
conclusion
of
the
reasons
for
judgment
Mr.
Justice
Mahoney,
speaking
for
the
majority,
said
at
pages
C.T.C.
185,
D.T.C.
5303-
04:
There
may
be
others
differently
treated
by
subsection
118(1)
on
the
basis
of
personal
characteristics,
but
the
group
now
in
issue
is
composed
of
married
persons
with
a
child
of
the
marriage,
living
together
and
not
supporting
each
other.
In
my
opinion,
that
is
not
a
group
that
can
be
described
as
being
disadvantaged
in
the
context
of
its
place
in
the
entire
social,
political
and
legal
fabric
of
our
society.
It
follows
that
it
is
not
a
distinct
and
insular
minority
within
the
contemplation
of
section
15.
The
distinction
made
by
subsection
118(1)
of
the
Income
Tax
Act
between
married
and
unmarried
persons
in
those
like
circumstances
is
not
discriminatory.
I
am
of
the
opinion
that
the
applicant’s
right
to
equal
benefit
of
the
law
under
subsection
15(1)
of
the
Charter
is
not
infringed
by
subsection
118(1)
of
the
Income
Tax
Act.
I
would
dismiss
this
application.
There
is
nothing
before
me
to
establish
that
persons
living
in
a
common-law
relationship
are
members
of
a
group
that
can
be
described
as
being
disadvantaged
in
the
context
of
its
place
in
the
entire
social,
political
and
legal
fabric
of
our
society.
What
follows
from
this
is
as
stated
in
the
reasons
for
judgment
delivered
by
Mahoney
J.A.
just
quoted
and
the
distinction
made
by
paragraph
118(l)(a)
between
the
appellant
and
a
married
person
is
not
discriminatory.
In
Leroux
v.
Co-operators
General
Insurance
Co.
(1991),
4
O.R.
(3d)
609,
83
D.L.R.
(4th)
694,
this
is
said
at
pages
620-21
(D.L.R.
705-06)
of
the
reasons
for
judgment
delivered
by
the
Ontario
Court
of
Appeal:
Leaving
to
one
side,
for
the
moment,
what,
in
a
case
such
as
this,
constitutes
a
’’group”,
we
do
not
think
that
unmarried
persons
who
live
together
are
members
of
a
"disadvantaged
group
in
Canadian
society”,
or
of
a
"discrete
and
insular
minority",
or
that
they
have
suffered
"social,
political
and
legal
disadvantage
in
our
society".
We
appreciate
that
unmarried
persons
who
live
together
do
not
possess
some
of
the
important
rights
that
married
persons
have
but,
by
the
same
token,
they
are
not
subject
to
many
of
the
legal
burdens
and
obligations
of
married
persons.
We
do
not
think
that
it
can
be
said
that
their
overall
position
nets
out
as
one
of
disadvantage.
Subsection
252(4)
was
added
to
the
Income
Tax
Act
by
S.C.
1993,
c.
24,
subsection
140(3),
applicable
after
1992.
It
reads:
252(4)
In
this
Act,
(a)
words
referring
to
a
spouse
at
any
time
of
a
taxpayer
include
the
person
of
the
opposite
sex
who
cohabits
at
that
time
with
the
taxpayer
in
a
conjugal
relationship
and
(i)
has
so
cohabited
with
the
taxpayer
throughout
a
12-month
period
ending
before
that
time,
or
(ii)
is
a
parent
of
a
child
of
whom
the
taxpayer
is
a
parent,
and,
for
the
purposes
of
this
paragraph,
where
at
any
time
the
taxpayer
and
the
person
cohabit
in
a
conjugal
relationship,
they
shall,
at
any
particular
time
after
that
time,
be
deemed
to
be
cohabiting
in
a
conjugal
relationship
unless
they
were
not
cohabiting
at
the
particular
time
for
a
period
of
at
least
90
days
that
includes
the
particular
time
because
of
a
breakdown
of
their
conjugal
relationship;
(b)
references
to
marriage
shall
be
read
as
if
a
conjugal
relationship
between
two
individuals
who
are,
because
of
paragraph
(a),
spouses
of
each
other
were
a
marriage;
(c)
provisions
that
apply
to
a
person
who
is
married
apply
to
a
person
who
is,
because
of
paragraph
(a),
a
spouse
of
a
taxpayer;
and
(d)
provisions
that
apply
to
a
person
who
is
unmarried
do
not
apply
to
a
person
who
is,
because
of
paragraph
(a),
a
spouse
of
a
taxpayer.
This
appeal
relates
to
1992
and
in
the
light
of
this
amendment
the
issue
it
raises
no
longer
obtains
after
that
taxation
year.
In
argument
the
appellant
said
that
the
inference
to
be
drawn
from
the
addition
of
subsection
252(4)
is
an
acknowledgement
by
Parliament
that
prior
to
the
1993
enactment,
paragraph
118(l)(a)
of
the
Act
contravened
subsection
15(1)
of
the
Charter.
In
my
opinion
that
reasoning
is
incorrect.
Further,
even
if
it
were
accurate
thinking,
I
question
the
relevance
of
such
an
inference
to
the
determination
of
the
issue
in
this
appeal
regarding
the
alleged
infringement
of
subsection
15(1).
The
appeal
is
dismissed.
Appeal
dismissed.
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