Kempo
J.T.C.C.:—The
informal
procedure
appeals
of
Shelly
A.
Collins
and
Barry
Collins
were,
on
consent
application,
joined
for
hearing
on
common
evidence.
They
each
pertain
to
their
1992
taxation
year.
The
matter
before
the
Court
concerns
two
particular
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act”)
and
the
effects
of
their
interaction.
According
to
subsections
56(5)
and
56(6)
of
the
Act
the
supporting
person
(within
a
family
with
children)
having
the
higher
income
than
that
of
the
other
supporting
person
must
include
into
income
any
family
allowances
paid
under,
or
likened
to
those
paid
under,
the
Family
Allowances
Act,
1973.
By
the
same
token,
it
is
only
the
supporting
person
having
the
lower
income
that
may
claim
a
deduction
on
account
of
child
care
expenses
pursuant
to
subsection
63(2)
of
the
Act.
In
filing
her
return
of
income
for
the
1992
taxation
year,
Shelly
Collins
included
family
allowance
payments
into
her
income
and
she
claimed
a
child
care
deduction.
The
latter
was
disallowed
by
the
Minister
of
National
Revenue,
Taxation
(the
"Minister”).
At
the
same
time
the
Minister
then
reassessed
Barry
Collins
for
his
1992
taxation
year
by
including
in
the
calculation
of
his
net
income
the
said
disallowed
child
care
deduction.
The
appeal
of
Shelly
Collins
concerns
the
disallowance
of
the
deduction
to
her;
she
therefore
says
her
tax
is
too
high.
The
appeal
of
Barry
Collins
essen-
tially
asks
that
the
deduction
be
deleted
which
obviously
would
have
the
effect
of
increasing
his
tax
payable.
No
authorities
were
provided
entitling
this
Court
to
increase
an
assessed
amount
of
tax;
indeed
the
authorities
that
I
am
aware
of
have
arrived
at
a
contrary
view.
However
the
appeals
were
not
prosecuted
on
this
point.
The
thrust
of
the
appeals,
as
raised
in
the
notices
of
appeal
as
filed,
and
as
argued
before
me,
was
that
the
effects
of
aforementioned
fiscal
provisions
were
unfair,
unreasonable
and
discriminatory.
No
viva
voce
evidence
was
called.
Rather
the
parties
agreed
the
matter
would
be
presented
on
the
following
agreed
statement
of
facts:
(a)
the
appellant
was
married
to
Barry
Collins
and
they
resided
together
throughout
the
year
1992;
they
were
the
only
supporting
persons
of
their
two
children
in
the
year;
(b)
the
appellant’s
income
for
the
1992
taxation
year
exceeded
that
of
her
spouse;
(c)
throughout
the
period
of
time
in
1992
during
which
the
amount
was
incurred,
the
appellant’s
spouse
was
not:
(i)
a
person
in
full-time
attendance
at
a
designated
institution
within
the
meaning
assigned
by
subsection
118.6(1)
of
the
Income
Tax
Act’,
(ii)
a
person
certified
by
a
medical
doctor
to
be
a
person
who
(A)
by
reason
of
mental
or
physical
infirmity
and
confinement
throughout
a
period
of
not
less
than
two
weeks
in
the
year
to
bed
or
to
a
wheelchair
or
as
a
patient
in
a
hospital,
an
asylum
or
other
similar
institution,
was
incapable
of
caring
for
children,
or
(B)
by
reason
of
mental
or
physical
infirmity,
was
in
the
year,
and
is
likely
to
be
for
a
long-continued
period
of
indefinite
duration,
incapable
of
caring
for
children,
(iii)
a
person
confined
to
a
prison
or
similar
institution
throughout
a
period
of
not
less
than
two
weeks
in
the
year,
or
(iv)
a
person,
who,
because
of
a
breakdown
of
the
person’s
marriage,
was
living
separate
and
apart
from
the
Appellant
at
the
end
of
the
year
and
for
a
period
of
at
least
90
days
commencing
in
the
year;
(d)
the
taxable
income
of
Barry
Collins
for
his
1992
taxation
year
was
$27,105.87,
and
(e)
the
taxable
income
of
Shelly
Collins
for
her
1992
taxation
year
was
$33,242.97
taking
into
account
a
$2,985
deduction
for
child
care
expenses.
The
scope
and
tenor
of
the
argument
advanced
on
behalf
of
the
appellants
was
in
accord
with
their
representative’s
written
submissions
as
provided
to
the
Court.
It
reads
thusly:
Revenue
Canada
refused
to
allow
the
child
care
expenses
to
be
claimed
by
Mrs.
Collins
but
did
require
her
to
claim
the
family
allowance
as
income
for
her
income
calculations.
Revenue
Canada
did
allow
Mr.
Collins
to
claim
the
child
care
expenses.
1992
tax
rate
for
Mrs.
Collins
was
in
the
26
per
cent
bracket;
Mr.
Collins
1992
Tax
rate
was
at
the
17
per
cent
bracket.
With
Revenue
Canada
not
allowing
Mrs.
Collins
to
declare
the
child
care
expenses
cost
the
Collins’
family
an
additional
$400
in
income
tax
for
1992.
The
Canadian
Tax
Act
and
Revenue
Canada
is
discriminating
against
the
Collins
family
and
other
Canadian
families
that
are
in
a
similar
situation.
The
following
is
an
explanation:
-
Single
parents
are
allowed
to
calculate
both
the
family
allowance
as
income
and
their
child
care
expenses
as
deductions
and
both
are
calculated
at
the
same
tax
rate.
-
Families
with
two
parents
but
with
only
one
spouse
working
can
also
calculate
the
family
allowance
income
and
the
child
care
expenses
at
the
same
tax
rate.
—
Families
with
two
parents
and
with
both
parents
working,
but
are
both
being
taxed
at
the
same
tax
rate,
does
not
matter
who
declares
what
as
the
families
total
tax
payable
will
remain
the
same
as
both
the
family
allowance
and
the
child
care
expenses
are
being
calculated
at
the
same
tax
rate.
—
It
is
only
when
both
spouses
are
working
and
they
are
being
taxed
at
different
tax
rates
does
it
make
any
difference
to
the
total
income
tax
payable
to
the
family
as
a
whole
and
is
the
only
time
that
it
makes
any
difference
to
Revenue
Canada.
It
is
the
only
situation
when
both
the
family
allowance
and
the
child
care
expenses
are
calculated
at
different
tax
rates!
It
is
only
this
section
of
our
citizens
that
fall
into
this
category
that
is
not
permitted
to
calculate
their
child
care
expenses
and
their
family
allowance
at
the
same
tax
rate.
What
this
means
is
that
these
citizens
are
required
to
pay
a
tax
that
the
rest
of
the
country
does
not
pay!
What
this
means
to
the
Collins
family
is
that
they
have
been
required
to
pay
a
$400
income
tax
that
single
parents
do
not
pay,
families
with
one
working
spouse
does
not
pay
and
families
with
two
working
spouses
that
are
working
at
the
same
tax
rate
do
not
pay!
Why
should
the
Collins
family
and
other
families
in
the
same
situation
have
to
pay
this
additional
income
tax
that
no
other
families
pay?
The
only
response
that
I
can
see
is
that
Revenue
Canada
is
tax
gouging
a
section
of
our
society.
This
is
carried
to
a
point
that
counters
the
whole
purpose
of
why
we
have
family
allowance.
Family
allowance
is
an
assistance
by
the
government
to
pay
for
the
high
cost
of
raising
children,
however,
if
you
are
taxing
the
family
allowance
at
26
per
cent
but
only
allow
the
child
care
expenses
to
be
deducted
at
17
per
cent
the
assistance
is
lost!
It
is
a
deliberate
attempt
to
gouge
more
income
tax
from
the
families
that
are
in
the
position
to
separate
the
income
and
expenses
into
two
different
tax
rates!
The
appellants’
representative
agreed
that
the
discrimination
in
this
case
arose
out
of
the
effects
of
these
fiscal
provisions,
and
he
submitted
that
its
inequality
or
discrimination
fundamentally
rested
on
economic
grounds.
Obviously
the
alleged
discrimination
here
housed
aspects
arising
from
the
appellants’
family
status
which
experienced
unequal
income
as
between
two
supporting
persons.
The
lack
of
integration
between
the
said
provisions
occurs
only
when
the
higher
income
individual
has
to
take
the
family
allowance
amounts
into
income
and
only
the
lower
income
individual
may
claim
the
child
care
expenses.
Responding
to
the
Court’s
inquiry
as
to
what
specific
remedies
were
being
sought,
the
appellants’
agent
then
agreed
he
was
advancing
the
provisions
of
subsection
15(1)
of
the
Canadian
Charter
of
Rights
and
Freedoms
(the
"Charter").
It
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.
Discrimination
was
described
by
McIntyre
J.
in
Andrews
v.
Law
Society
of
British
Columbia,
[1989]
1
S.C.R.
143,
56
D.L.R.
(4th)
1,
at
page
174
(D.L.R.
18)
AS
a
distinction,
whether
intentional
or
not
but
based
on
grounds
relating
to
personal
characteristics
of
the
individual
or
group,
which
has
the
effect
of
imposing
burdens,
obligations,
or
disadvantages
on
such
individual
or
group
not
imposed
upon
others,
or
which
withholds
or
limits
access
to
opportunities,
benefits,
and
advantages
available
to
other
members
of
society.
Distinctions
based
on
personal
characteristics
attributed
to
an
individual
solely
on
the
basis
of
association
with
a
group
will
rarely
escape
the
charge
of
discrimination,
while
those
based
on
an
individual’s
merits
and
capacities
will
rarely
be
so
classed.
None
of
the
provisions
raised
create
a
facial
distinction
based
on
a
personal
characteristic;
rather,
the
facial
distinctions
are
based
solely
on
income
levels.
However
the
effects
of
the
distinction
and
the
economic
discrimination
arise
only
where
the
individuals
are
in
a
family
situation.
Thus
an
analogous
ground
of
family
status
is
engaged
which,
in
my
opinion,
is
a
personal
characteristic
contemplated
within
subsection
15(1)
of
the
Charter.
This
does
not
end
the
inquiry
however.
The
Charter
was
not
intended
to
eliminate
all
distinctions,
only
those
distinctions
which
are
"discriminatory".
In
this
context
it
must
be
determined
whether
the
appellants’
family
status
may
be
one
of
a
discrete
and
insular
minority
attracting
stereotyping,
historical
disadvantage
or
vulnerability
to
political
and
social
prejudice
in
Canada;
in
this
respect
see
Schachtschneider
v.
The
Queen,
[1993]
2
C.T.C.
178,
93
D.T.C.
5298
(F.C.A.),
at
page
196
(D.T.C.
5311)
and
À.
v.
Turpin,
[1989]
1
S.C.R.
1296,
at
page
1333.
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;
see
Schachtschneider
at
pages
(C.T.C.
183-84)
5303
and
5304.
Further,
that
status
is
not
describable
as
being
part
of
a
group
lacking
in
political
power,
with
vulnerability
to
having
their
interests
overlooked,
and
their
rights
to
equal
concern
and
respect
violated;
see
Wilson
J.
in
the
Andrews
case,
supra.
The
distinction
complained
of
here
occurs
only
in
families
in
which
both
parents
work
but
have
different
income
amounts
and
therefore
different
tax
rates.
When
both
parents
are
in
the
same
tax
bracket,
whether
high
or
low,
the
same
tax
rate
is
used
for
both
the
child
care
expenses
and
the
family
allowance
payments.
The
difference
between
these
two
examples
is
the
economic
levels
of
income
that
spouses
have
and
not
the
type
of
family
in
question.
Respondent’s
counsel
requested
an
opportunity
to
call
evidence
and
present
argument
under
section
1
of
the
Charter
if
I
found
there
was
discrimination
within
the
meaning
of
subsection
15(1).
Since
I
have
concluded
there
was
no
such
discrimination,
it
is
unnecessary
that
the
parties
be
recalled
to
argue
the
effect
of
section
1.
In
conclusion
then
the
appeal
of
each
appellant
is
dismissed.
Appeal
dismissed.
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