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Docket: 2005-2240(IT)I |
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BETWEEN: |
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VAUGHN BARNETT, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on October 24, 2005, at Fredericton, New Brunswick, by
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The Honourable Justice Campbell J. Miller |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Edward Sawa |
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JUDGMENT
The appeal from the determination made under the Income Tax Act for the 2003 base taxation year is dismissed.
Signed at Ottawa, Canada, this 4th day of November, 2005.
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"CampbellJ. Miller" |
Miller J.
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Citation: 2005TCC719 |
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Date: 20051104 |
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Docket: 2005-2240(IT)I |
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BETWEEN: |
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VAUGHN BARNETT, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Miller J.
[1] Mr. Vaughn Barnett challenges the constitutionality of the definition of "eligible individual" as used in the Child Tax Benefit provisions of the Income Tax Act (the Act), on the basis that it discriminates against certain joint custodial parents, contrary to subsection 15(1) of the Canadian Charter of Rights and Freedoms. Mr. Barnett provided the requisite notices to the Provinces of his action before the Tax Court of Canada. No representatives of the Provinces appeared. I find the definition of eligible individual in section 122.6 of the Act is not a breach of subsection 15(1) of the Charter.
Facts
[2] Mr. Barnett and his wife separated in 1999. They agreed to share custody of their four children. Mr. Barnett had two of the children live with him for a year and a half. He obtained out of town employment and was unable to continue this arrangement. He contributed part of his employment earnings to his spouse for the benefit of the children. When Mr. Barnett was not working he was on income assistance. He and his wife obtained a Court order dated June 4, 2001 which provided that both he and his wife should have joint custody and share the parenting responsibility of their four children.
[3] In 2004, Mr. Barnett again had two children staying with him, but due to lack of income he felt unable to care fully for the children and agreed that they should live with their mother. Mr. Barnett made it clear to his spouse that this was out of economic necessity and was not to prejudice any right to shared parenting. In 2004, Mr. Barnett looked into claiming the child tax benefit, believing that such additional funds would allow him to have one or more children reside primarily with him.
[4] The arrangement in early 2004, and again in September 2004 onward was that one of the children spent three overnights with her father, Mr. Barnett, and four overnights with her mother. Mr. Barnett's ex-wife, Ms. Richards, only reluctantly agreed to Mr. Barnett having as much time as this; she wanted the child primarily with her, as she felt her home provided a stronger family environment. Clearly, both parents contributed to the child's welfare, but on a time-spent basis, Mr. Barnett acknowledged that his spouse was the primary caregiver, though he was a significant caregiver to the child. On a quality-time basis, Mr. Barnett maintained his and his spouse's time with the child was equal.
[5] Mr. Barnett compared his finances and what he was able to provide for the child, to his ex-wife's. It was evident that his ex-wife and her new husband provided a more comfortable environment, if comfort is to be determined on the basis of amenities such as vehicles and TVs. Mr. Barnett had few assets and little income, though he had obtained a law degree and was seeking to gain admission to the New Brunswick bar.
[6] Mr. Barnett applied for the child tax benefit but was denied on the basis he was not the eligible individual, being the parent who primarily fulfils the responsibility for the care and upbringing of the child.
Analysis
[7] Mr. Barnett did not argue that he was the eligible individual for purposes of the child tax benefit. "Eligible individual" in section 122.6 of the Act is defined as:
122.6 In this subdivision,
"eligible individual" in respect of a qualified dependant at any time means a person who at that time
(a) resides with the qualified dependant,
(b) is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of the qualified dependant,
...
(f) where a qualified dependant resides with the dependant's female parent, the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant is presumed to be the female parent,
[8] I agree that, based on the evidence, Mr. Barnett's ex-spouse, and not Mr. Barnett, is the eligible individual for purposes of the child tax benefit.
[9] Mr. Barnett challenges the definition of eligible individual on the basis it is discriminatory pursuant to subsection 15(1) of the Charter. His initial position was set out in his appeal as follows:
2. I have been discriminated against on the ground of socioeconomic condition, contrary to section 15(1) of the Charter, in that the CCRA has failed to address the Catch-22 created by the fact that a person on social assistance cannot easily afford to be a primary caregiver without first having some of the CCTB, and yet cannot get the CCTB without first being a primary caregiver.
3. I have been discriminated against on the ground of family status, contrary to section 15(1) of the Charter, in that the failure to address the above Catch-22 disadvantages a de facto non-custodial parent, even though that parent may wish to be a custodial parent, and may even have joint custody rights.
4. I have been discriminated against, again on the ground of family status, contrary to section 15(1) of the Charter, for the reason that the "all or nothing" policy of recognizing only one primary caregiver as eligible for the CCTB (and never splitting it on an equal or pro-rated basis) means that even a parent with de facto joint custody of several children may not get any CCTB at all.
At trial, Mr. Barnett dropped his argument of discrimination based on his socio-economic condition, but continued with his argument of discrimination based on family status.
[10] Mr. Barnett argues that a joint custodial parent, who could be a primary caregiver, but is denied that opportunity by the other parent is being discriminated against. 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 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.
[11] The Supreme Court of Canada in the case of Law v. Canada[1] set down a three-step purposive and contextual approach to the analysis of a challenge under subsection 15(1) of the Charter.
(A) Does the impugned law (a) draw a formal distinction between the Respondent and others on the basis of one or more personal characteristics, or (b) fail to take into account the Respondent's already disadvantaged position within Canadian society resulting in substantively differential treatment between the Respondent and others on the basis of one or more personal characteristics?
(B) Is the Respondent subject to differential treatment based on one or more enumerated and analogous grounds?
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(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the Respondent in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect and consideration?
A - Formal Distinction
[12] The starting point is the identification of a formal distinction within the impugned law between Mr. Barnett and others on the basis of personal characteristics. Mr. Barnett argues that his status as a joint custodial parent, precluded from being a primary caregiver, distinguishes him from others. He further argues that such a status, based on the status of a parent generally, is at its very core a personal characteristic.
[13] The definition of "eligible individual" distinguishes between a parent who primarily fulfils the care and upbringing responsibilities and the parent who does not. The personal characteristic of being a custodial parent is not distinguishable. It is the level of care that marks the distinction. Mr. Barnett provides two reasons why he could not meet the primary caregiver status: first, because his ex-wife was not prepared to give up that status to him; second, because he could not afford to. Do these reasons make the distinction between primary, and what I will call a secondary provider, a distinction based on personal characteristics? I do not believe so. Impecuniosity is not a personal characteristic. Neither is having an uncooperative ex-spouse. So, while the status of a custodial parent may well be a personal characteristic, the definition of "eligible individual" in the Income Tax Act does not draw a distinction between the joint custodial parent and others; it draws a distinction between primary and secondary providers. Such a distinction is not one based on personal characteristics. I should make clear that Mr. Barnett did not argue that he was being discriminated against due to the presumption in paragraph (f) of the definition of eligible individual. That presumption does favour the female parent. I have therefore not addressed that aspect of the impugned definition.
[14] The second branch of the first step in the inquiry is to ask if the law fails to take into account the claimant's already disadvantaged position, resulting in differential treatment between Mr. Barnett and others on the basis of personal characteristics. Mr. Barnett argues that the "others" referred to would be the joint custodial parent who qualifies for the child tax benefit, being the primary caregiver. Granted, joint custodial parent, and certainly an impoverished joint custodial parent is in a disadvantaged position. Yet, again, there is no distinction between such an individual and the other joint custodial parent that is based on personal characteristics.
[15] While I find Mr. Barnett has not met the first level of inquiry to take this analysis further, for the sake of completeness I wish to address his arguments on the second and third stages of the discrimination analysis.
B - Analogous Grounds
[16] Is the Respondent subject to differential treatment based on one or more, enumerated and analogous grounds?
[17] Mr. Barnett relies on the Supreme Court of Canada decision in Thibodeau v. Canada[2] to argue that the status of being a separated or divorced custodial parent has been recognized as an analogous ground of discrimination under subsection 15(1). But Mr. Barnett is not subjected to the differential treatment of not receiving the child tax benefit due to his status as a joint custodial parent, but due to his status as a joint custodial parent who is the secondary provider due to having little money and an uncooperative spouse or ex-spouse. If that more detailed status is considered a personal characteristic (which I have found it is not), is such status an analogous ground? The Supreme Court of Canada in Corbiere v. Canada[3] provided some guidance on this aspect of the analysis:
13 What then are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.
[18] The specific family status Mr. Barnett relies upon is not an immutable personal characteristic: financial circumstances change;[4] uuncooperative ex-spouses attitudes change. These are not the type of immutable characteristics that are logically lumped together with those enumerated in subsection 15(1). Had I felt it necessary to proceed to the second level of inquiry I would not have found any analogous grounds.
C - Substantive Discrimination
[19] Finally, turning to the third level of inquiry, had Mr. Barnett been able to convince me on the first two, I find he would have failed at this third stage. What benefit has been withheld from Mr. Barnett, and withheld in a way that perpetuates the negative stereotype of a deadbeat neglectful Dad? The benefit at issue is, as the name implies, the child tax benefit - a benefit for the child. A parent is a conduit of such benefit, not the ultimate beneficiary. The benefit is to serve the needs of the child by providing a parent with funds for the child. That Mr. Barnett's ex-wife gets the money, and not Mr. Barnett, does not deny the child the benefit. Though Mr. Barnett argues it denies the child the benefit while under his care; he cannot provide as much care to the child as his ex-wife can. Yet the legislation allows for the joint custodial parents to determine, from one month to the next who is the primary caregiver, and consequently who is to receive the Child Tax Benefit. The legislation attempts to ensure the benefit has the best opportunity to flow to the child by giving the money to the parent with the greater responsibility for the child's upbringing. This does not paint the other parent in any derogatory stereotypical fashion: it does not negatively affect his or her dignity. It is a practical solution with the best interests of the child paramount.
[20] The Appellant argues that a prorating of the child tax benefit would be a fairer way to have the money follow the child. That may well be, but that is something for the legislators to determine. It is not a determinant of whether the existing provision is discriminatory to the extent of bringing subsection 15(1) of the Charter into play.
[21] For these reasons, I dismiss the Appellant's appeal.
Signed at Ottawa, Canada, this 4th day of November, 2005.
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"CampbellJ. Miller" |
Miller J.
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CITATION: |
2005TCC719 |
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COURT FILE NO.: |
2005-2240(IT)I |
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STYLE OF CAUSE: |
Vaughn Barnett and Her Majesty the Queen |
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PLACE OF HEARING: |
Fredericton, New Brunwick |
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DATE OF HEARING: |
October 24, 2005 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice Campbell J. Miller |
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DATE OF JUDGMENT: |
November 4, 2005 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Edward Sawa |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |