Sobier,
T.C.C.J.
(orally):—
Until
the
enactment
of
paragraph
3(f),
the
Federal
Court
and
this
Court
through
Chief
Judge
Couture
made
it
clear
that
a
positive
amount
was
necessary
in
order
to
constitute
income
for
the
purposes
of
section
63.
Section
63
is
a
scheme
to
allow
the
deduction
of
child
care
expenses.
It
has
as
a
matter
of
policy
stated
that
the
supporting
party
with
the
lower
income
will
be
the
one
entitled
to
the
child
care
deduction.
That
was
interpreted
in
McLaren
v.
M.N.R.,
[1990]
2
C.T.C.
429,
90
D.T.C.
6566
(F.C.T.D.)
and
in
Fiset
v.
M.N.R.,
[1988]
1
C.T.C.
2335,
88
D.T.C.
1223
(T.C.C.),
as
having
to
be
a
positive
amount
and,
in
what
was
apparently
a
knee-jerk
reaction
to
these
cases,
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
was
amended
and
was
amended
badly,
hastily,
and
without
proper
consideration
of
what
it
was
doing.
I
think
that
by
enacting
paragraph
3(f)
as
it
was
enacted,
without
giving
proper
consideration
to
what
was
intended
by
section
63,
was
a
quick
patch-over
and
enacted
in
order
to
negate
the
effects
of
McLaren
and
Fiset,
supra.
They
did
so
with
a
sledgehammer
rather
than
with
a
scalpel.
I
believe
that
the
problems
could
have
been
faced
and
dealt
with
in
a
more
sophisticated
fashion
than
they
were,
but
they
were
not.
They
were
using
a
very
dull
sword
to
cut
out
the
heart
of
the
decisions
of
McLaren
and
Fiset.
However,
cut
out
that
heart
they
did.
I
would
strongly
urge
the
Ministry
of
Finance
and
the
Ministry
of
National
Revenue
to
rethink
the
blundering
way
in
which
they
try
to
get
around
McLaren
and
Fiset
and
to
take
a
look
at
what
their
real
purpose
was
and
that
is
to
benefit
a
family
of
two
working
parents
which
in
this
case,
and
in
others
I
have
heard,
have
done
it
incorrectly.
It
is
with
regret
that
I
must
inform
Mrs.
Fromstein
that
the
Tax
Court
of
Canada
is
a
court
of
law,
not
a
court
of
equity.
We
must
interpret
the
tax
statute
in
accordance
with
its
plain
meaning.
There
is
no
doubt
that
various
sections
of
the
Income
Tax
Act
are
at
variance
with
others.
Persons
with
employment
income
are
not
allowed
the
deductions
that
persons
with
business
income
or
income
from
property
are
allowed.
There
are
very
many
areas
where
there
seems
to
be
a
contradiction.
Unfortunately,
in
the
case
here,
the
enactment
of
paragraph
3(f),
as
wide
as
it
was
by
referring
to
this
part,
caught
and
brings
under
its
control
section
63.
As
I
said,
I
would
strongly
urge
members
of
Revenue
Canada
and
the
Department
of
Justice
memebers
to
indicate
to
their
masters
in
Ottawa
that
the
Court
feels
that
what
they
have
done
is
inequitable
and
that
they
should
rethink
their
position.
However,
I
am
faced
with
interpreting
the
law
as
it
appears
in
the
statute
and
I
reluctantly
find
that
your
appeal
is
dismissed
for
the
reasons
I
have
just
stated.
Thank
you.
Appeal
dismissed.
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