Couture,
C.J.T.C.C.
[TRANSLATION]:—The
appellant
is
appealing
an
assessment
issued
by
the
Minister
of
National
Revenue
on
June
18,
1984
for
the
1983
taxation
year.
He
acted
for
himself
and
the
evidence
he
adduced
in
Court
revealed
the
following
facts.
Between
1980
and
1984
the
appellant
lived
with
a
girlfriend
in
Ville
LaSalle,
province
of
Québec.
On
June
18,
1984
his
girlfriend
gave
birth
to
a
child
of
which
she
and
the
appellant
admit
that
the
latter
is
the
father,
as
is
also
indicated
on
the
child's
birth
certificate
filed
as
Exhibit
A-1.
Since
the
child
was
born
at
term
in
June
1984,
it
is
obvious
that
he
was
conceived
during
1983,
and
that
on
December
31
of
that
year
he
was
“en
ventre
sa
mère"
and
was
thus
a
fetus.
The
evidence
also
revealed
that
the
appellant
and
his
girlfriend
shared
equally
the
costs
of
accommodation,
food
and
all
expenses
related
to
their
common
home.
In
her
testimony
his
girlfriend
admitted
that
during
her
pregnancy
her
food
habits
had
changed
so
that
her
consumption
of
certain
products
such
as
milk
had
increased
and
her
diet
in
general
had
been
more
closely
watched
and
carefully
planned.
In
his
tax
return
for
the
1983
taxation
year
the
appellant,
relying
on
the
provisions
of
paragraph
109(1
)(b)
of
the
Income
Tax
Act
(the
Act)
claimed,
in
addition
to
the
personal
exemption
of
$3,770
for
himself,
an
additional
exemption
of
$3,300
for
a
fully
dependent
person.
109.(1)
For
the
purpose
of
computing
the
taxable
income
of
an
individual
for
a
taxation
year,
there
may
be
deducted
such
of
the
following
amounts
as
are
applicable:
(b)
in
the
case
of
an
individual
not
entitled
to
a
deduction
under
paragraph
(a)
who,
during
the
year,
(i)
was
an
unmarried
person
or
a
married
person
who
neither
supported
nor
lived
with
his
spouse
and
was
not
supported
by
his
spouse,
and
(ii)
whether
by
himself
or
jointly
with
one
or
more
other
persons,
maintained
a
self-contained
domestic
establishment
(in
which
the
individual
lived)
and
actually
supported
therein
a
person
who,
during
the
year,
was
(A)
except
in
the
case
of
a
child
of
the
individual,
resident
in
Canada,
(B)
wholly
dependent
for
support
on
the
taxpayer,
or
the
taxpayer
and
such
person
or
person,
as
the
case
may
be,
and
(C)
connected,
by
blood
relationship,
marriage
or
adoption,
with
the
taxpayer,
or
the
taxpayer
and
such
person
or
persons,
as
the
case
may
be,
an
amount
equal
to
the
aggregate
of
(iii)
$1,600,
and
(iv)
$1,400
less
the
amount,
if
any,
by
which
the
income
for
the
year
of
the
dependent
person
exceeds
$300;
The
appellant
claimed
that
in
1983
he
maintained
jointly
with
another
person
a
self-contained
domestic
establishment
and
actually
supported
therein
a
person
who,
during
the
year,
was
wholly
dependent
for
support
on
him
and
that
other
person
and
that
the
said
dependent
person
was
connected
with
him
by
blood
relationship,
as
provided
in
paragraph
(b).
Consequently,
he
claimed
that
he
was
entitled
to
the
$3,300
exemption
as
a
deduction
in
computing
his
taxable
income.
His
argument
to
the
Court
was
that
the
fetus
“en
ventre
sa
mère"
on
December
31,
1983
was
a
“person"
within
the
meaning
of
paragraph
(b)
according
to
the
definition
of
the
word
“person"
in
subsection
248(1),
which
reads
as
follows:
“person”,
or
any
word
or
expression
descriptive
of
a
person,
includes
any
body
corporate
and
politic,
and
the
heirs,
executors,
administrators
or
other
legal
representatives
of
such
person,
according
to
the
law
of
that
part
of
Canada
to
which
the
context
extends;
[Emphasis
added.]
Since
the
appellant
was
living
in
the
province
of
Quebec
in
1983,
the
part
of
Canada
referred
to
in
the
circumstances
is
therefore
the
province
of
Quebec
and
the
law
applicable
in
determining
the
legal
status
of
a
person
is
the
Quebec
Civil
Code.
Relying
on
Article
608
of
the
Civil
Code,
which
provides
that
a
fetus
may
inherit
if
it
is
conceived
at
the
time
the
succession
or
legacy
devolves,
and
if
it
is
born
alive
and
viable
at
the
end
of
the
pregnancy,
he
submitted
that
the
fetus
his
girlfriend
was
bearing
was
his
heir
at
December
31,
1983,
and
therefore
a
"person"
within
the
meaning
of
paragraph
(b)
of
the
Act.
The
appellant
added
in
argument
that
if
he
had
died
before
January
1,
1984
the
fetus
would
have
inherited
from
him
and
was
thus
truly
his
heir
at
December
31,
1983.
If
the
appellant’s
thesis
is
consistent
with
the
interpretation
the
Court
must
give
the
Act,
we
would
then
examine
the
other
requirements
set
out
in
paragraph
(b)
to
ensure
that
he
meets
each
of
them
if
he
wishes
to
benefit
from
the
additional
exemption
claimed.
If
the
Court
came
to
the
conclusion
that
a
fetus
is
not
a
person
within
the
meaning
of
paragraph
(b),
on
the
other
hand,
then
his
appeal
would
have
to
be
dismissed
and
there
would
be
no
need
to
consider
these
other
requirements
in
paragraph
(b).
The
appellant’s
thesis
seems
logical
and
consistent
with
the
interpretation
that
should
be
given
to
the
provisions
of
the
Civil
Code
and
of
the
Act
at
first
sight,
but
a
more
detailed
examination
of
the
provisions
of
the
Civil
Code
shows
that
in
claiming
the
legal
status
of
an
heir
at
December
31,
1983
for
the
fetus
in
question
the
appellant
was
distorting
the
facts.
In
fact,
this
legal
status
as
an
heir
is
only
acquired
upon
the
death
of
the
person
from
whom
the
heir
may
effectively
and
legally
inherit.
Prior
to
this
event
a
person
who
might
inherit
upon
that
death
is
not
an
heir
but
simply
capable
of
becoming
one.
Article
602
of
the
Civil
Code
states:
Successions
devolve
by
natural
death.
The
person
will
become
an
heir
as
long
as
he
survives
the
person
from
whom
he
may
inherit
and
as
long
as
he
has
not
been
disinherited.
When
subsection
248(1)
of
the
Act
uses
the
word
“heir”,
the
Court
is
convinced
that
in
this
context
Parliament
was
contemplating
someone
who
had
acquired
this
legal
status
and
not
someone
whose
status
was
as
uncertain
as
that
of
the
fetus
referred
to
by
the
appellant.
Since
this
fetus
had
not
acquired
the
legal
status
of
an
heir
at
December
31,
1983,
because
the
event
that
might
have
allowed
him
to
assume
that
status
had
not
occurred
by
that
date,
he
could
not
be
regarded
as
a
"person"
for
purposes
of
applying
paragraph
109(1)(b)
for
the
taxation
year
under
appeal.
Since
the
Court
has
come
to
the
conclusion
that
the
fetus
for
which
the
appellant
was
claiming
an
exemption
of
$3,300
as
a
deduction
in
computing
his
taxable
income
was
not
a
person
for
purposes
of
paragraph
(b),
there
is
therefore
no
need
for
it
to
consider
the
other
requirements
of
the
said
paragraph.
For
these
reasons
the
appeal
is
dismissed.
Appeal
dismissed.
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