Lamarre T.C.J.:
1 The appellant is claiming child care expenses of $2,928 for the 1994 taxation year. The Minister of National Revenue (the “Minister”) denied him his deduction for child care expenses on the ground that the appellant's de facto spouse, Sonia Lévesque, had had a lower income than that of the appellant during that same year and that she therefore had to claim the child care expenses as a deduction against her income under subsection 63(2) of the Income Tax Act (the “Act”).
2 The evidence revealed that the appellant reported total income of $56,517 and his spouse $4,423 for 1994. The child care expenses were incurred by the appellant in respect of their son Pierre-Luc Dubé, born on September 3, 1991.
3 Subsection 63(2) of the Act reads as follows:
(2) Income exceeding income of supporting person. Where the income for a taxation year of a taxpayer who has an eligible child for the year exceeds the income for that year of a supporting person of that child (on the assumption that both incomes are computed without reference to this section and paragraphs 60(v. 1) and (w)), the amount that may be deducted by the taxpayer under subsection (1) for the year as or on account of child care expenses shall not exceed the lesser of(a) the amount that would, but for this subsection, be deductible by the taxpayer for the year under subsection (1),and
- (b) the product obtained when the total of
- (i) the product obtained when $150 is multiplied by the number of eligible children of the taxpayer for the year each of whom
(A) is under 7 years of age at the end of the year, or
(B) is a person in respect of whom an amount may be deducted under section 118.3 in computing a taxpayer's tax payable under this Part for the year, and
(ii) the product obtained when $90 is multiplied by the number of eligible children of the taxpayer for the year (other than those referred to in subparagraph (i))
(iii) a person in full-time attendance at a designated educational institution (within the meaning assigned by subsection 118.6(1)),
- (iv) 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 2 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,
(v) a person confined to a prison or similar institution throughout a period of not less than 2 weeks in the year, or
(vi) a person who, because of a breakdown of the person's marriage, was living separate and apart from the taxpayer at the end of the year and for a period of at least 90 days beginning in the year.
The expression “supporting person” is defined in subsection 63(3) of the Act, as follows:“supporting person” — “supporting person” of an eligible child of a taxpayer for a taxation year means(a) a parent of the child,
(b) the taxpayer's spouse, or
(c) an individual who deducted an amount under section 118 for the year in respect of the child
The term “spouse” is defined in subsection 252(4) and reads as follows:(4) Extended meaning of“spouse” and“former spouse”. 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 (otherwise than because of the application of subparagraph (2) a)(iii)) 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 2 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.
There is no doubt that Sonia Lévesque was the appellant's spouse during the 1994 taxation year and, as such, was a supporting person under the Act during that same year.4 It seems clear to me from the terms used in section 63 that the amount of $2,928 may not be deducted by the appellant even though those expenses were incurred by him. This is the case because his de facto spouse, the other supporting person, had a lower income during 1994.
5 The admissions and facts revealed in evidence do not permit me to make any other finding since the appellant's spouse does not meet any of the conditions stated in subsection 63(2) of the Act to enable the appellant to claim the child care expense deduction.
6 The appellant invoked the administrative error in an attempt to have the assessment vacated. He contended that the Minister had all the evidence in hand at the time he issued the first assessment in which the child care expense deduction was allowed. It was in the reassessment dated December 4, 1995, that the Minister subsequently denied the appellant the deduction.
7 I will respond to this contention by saying that there was no administrative error since the Minister acted within the time limits required by subsection 152(4) of the Act in issuing a reassessment. Furthermore, the case law is clear that the Minister is not bound by his previous decisions if they do not comply with the letter of the Act.
8 For these reasons, the appeal is dismissed.
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