Campbell v. The Queen

Campbell v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2004-11-04
Neutral citation
2004 TCC 460
File numbers
2002-4718(IT)I
Judges and Taxing Officers
Joe E. Hershfield
Subjects
Income Tax Act
Decision Content
Citation: 2004TCC460
20041104
Docket: 2002-4718(IT)I
BETWEEN:
WILLIAM S. CAMPBELL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
CORRECTED REASONS FOR JUDGMENT
(Replaces Reasons for Judgment dated October 7, 2004. Correction at paragraph 71.)
Hershfield J.
Introduction
[1] This case concerns a father's claim that he was the primary caregiver to his son for periods affecting his 1995, 1996 and 1997 taxation years and that he thereby meets the requirements of the Income Tax Act ("ITA") to receive the Canada Child Tax Benefit ("CCTB"). The case concerns as well the treatment of male versus female parents under the provisions of the CCTB in the context of the equality guarantees found in the Canadian Charter of Rights and Freedoms ("Charter"). The impugned provisions under the ITA and Income Tax Regulations ("Regulations") contain a presumption that where a child resides with both parents, the female parent is the primary caregiver and thus the parent eligible to receive the CCTB. The impact of this presumption in light of sections 15 and 28 of the Charter and subsection 52(1) of the Constitution Act is dealt with in these Reasons as well as Appellant's claim that he was, in fact, the primary caregiver to his son during the period under review. The Respondent acknowledged that the required notices under section 19.2 of the Tax Court of Canada Act ("TCCA") have been sent in respect of the Appellant's Charter challenge.
[2] The Minister initially accepted the Appellant's claim on the basis that the Appellant had care of his son and did not have a spouse during the relevant periods. The Minister later learned that the Appellant was in fact married during the relevant periods and that he resided with his spouse and their son in the same home throughout such periods. Relying on the presumption that the female parent is the primary caregiver in these circumstances, the Minister re-determined that the Appellant was not entitled to the benefits initially allowed. The Appellant appeals that re-determination.[1]
[3] At this point it would be helpful to note that the relevant periods in this appeal do not correspond with the taxation years appealed. This results from the way in which the CCTB is calculated. Simply, the CCTB is a non-taxable amount paid monthly to an eligible individual to assist in the raising of a child. The amount is calculated by looking at the eligible individual's "base year" as defined in the ITA. In the present case, the Appellant was in receipt of the CCTB for the months April 1997 through April 1999. The base years for these months are as follows:
April 1997 to June 1997: base year 1995
July 1997 to June 1998: base year 1996
July 1998 to April 1999: base year 1997
[4] Accordingly, although the taxation years under appeal are 1995, 1996 and 1997, the Appellant's entitlement to the CCTB requires his being the "eligible individual" (as defined in the ITA) for the relevant periods April 1997 through April 1999. Subject to addressing the impact of the presumption in favour of the female parent, the Appellant will be considered the eligible individual if he was the parent during the relevant periods who primarily fulfilled the responsibility for the care and upbringing of his son.[2]
[5] The presumption in favour of the female parent is contained in paragraph (f) of the definition of "eligible individual" which reads as follows:
122.6 In this subdivision,
. . .
(f) where a qualified dependant resides with the qualified 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, . . .
[6] Paragraph (f) speaks to the case, as in the case at bar, where there are two persons, both parents of the qualified dependant, who claim to be the parent who primarily fulfils the responsibility for the care and upbringing of the qualified dependant. As will be noted later in these Reasons, the presumption does not apply if both parents have filed a notice claiming the CCTB provided the two claimants live at different locations. Since that is not the case in this appeal, the presumption applies.
[7] The Appellant testified at the hearing that he, not his wife, was the primary caregiver during the relevant periods. If that is the case, the presumption in paragraph (f) has been held not to apply. That is, the presumption in paragraph (f) has been found to be rebuttable.[3] It is rebuttable because it is only a "presumption" not a deemed fact. Ignoring the Charter issue then, the Appellant can succeed on his claim to receive the CCTB if he can establish, on a balance of probability, that he was his son's primary caregiver during the relevant periods.
[8] To oppose the Appellant's testimony that he was his son's primary caregiver, the Respondent called the child's mother who separated from the Appellant at the end of March 1999. The child's aunt (the mother's sister) was called to corroborate the mother's testimony.
Was the Appellant the Primary Caregiver
[9] This is a case of considerable hostility between the Appellant and his former wife. Each has recast history to best reflect on their own conduct in relation to their son and to shed the worst possible light on their partner's conduct in relation to their son. While it is not particularly helpful in my view to review the testimony of the Appellant and his wife in any detail, an overview of the evidence is required.
[10] The Appellant was jobless when his son was born in March 1997. He had lost his job 12 days earlier. He was jobless until sometime after he completed a four to six month retraining program that ended in or about June 1998. His testimony was that he looked diligently for work and cared for his son while his wife was off attending to her business. His wife was a neglectful mother who had no real relationship with the son. The Appellant tendered evidence as to his wife's business routine away from home and considerable hearsay evidence was advanced (letters and affidavits) which taken together describe him as a loving, caring, attentive father who drove his son to and from daycare and who had been seen giving lunch to his son, taking him for walks in a stroller and watching over him. He said he fed, changed and shopped for his son. He said he attended with his son at doctor's appointments and otherwise took the role of the parent performing the primary role in the care and upbringing of his son. He said he cashed in over $30,000.00 of savings to support the family during his unemployment and used employment insurance benefits for the same purpose.
[11] On cross-examination, however, he was not very convincing as to his role as a primary caregiver. He admitted his wife breast fed for three to four months. He stumbled over meal schedules and baby products and did not know where his son's health card was kept. He acknowledged that although his wife was away a lot in the course of her business, both he and his son travelled with her regularly, at least until the summer of 1998 at about which time the Appellant's wife began taking some trips without the son. By February 1999 the son was enrolled in a daycare three times a week and, it would seem was travelling less with his mother. However, even with the son in daycare, weekends were available for the child to travel with the mother and much of her travel was on weekends.
[12] While I am satisfied that the Appellant may have been required to spend more time with his son from the summer of 1998 through to his separation from his wife in March 1999, I am not satisfied that the increase in his role would have constituted him the primary caregiver during this period.
[13] The Appellant's wife was a professional dog handler. She showed dogs. Before shows she would spend all night grooming her dogs. Showing her dogs required travel and at shows she spent several hours a day handling her dogs during the course of their being judged. She started back to work only nine days after her son was born. She testified that until the summer of 1998 the son travelled with her on all trips. She described the Appellant as a lazy, cheating, lying, good-for-nothing who never once changed a diaper or fed their son a meal. She said she paid for all the household expenditures with the exception of some 10 mortgage payments which she acknowledged her husband made during the relevant period. The animosity between the Appellant and his former wife is best demonstrated by an exchange between them on the Appellant's cross-examination of his former wife wherein they accused each other of tax evasion. Notwithstanding such hostility, her testimony in respect of the day-to-day care of her son clearly reflected that she had a much greater role than the Appellant in this regard.
[14] At the end of the day I would suggest that neither the Appellant nor his former wife are quite as bad as they would each have me believe. The Appellant was not as lazy as portrayed by his wife and I accept that he did help with their son's care and upbringing. The Appellant's sister-in-law who testified, confirmed this to some extent at least. Although I would not say that this witness was entirely disinterested, her testimony was clearly more balanced and she acknowledged that the Appellant did, at least on occasion, assist in feeding, changing and attending to his son.
[15] On balance, the testimony of the Appellant that he was the primary caregiver was simply not credible which is to say that he has not brought forward sufficient evidence to rebut the presumption in favour of the mother. To the contrary, the evidence brought forward by the Respondent is sufficient to establish, on a balance of probability, that the mother was in this case the primary caregiver of the qualified dependant during the relevant periods.
[16] It is important to underline this finding in the context of the analysis of the Charter issue raised by the Appellant. The Charter challenge, as I will elaborate on momentarily, is based on the discriminatory impact of the presumption in terms of the process that he has been subjected to by reason only of his gender. The Appellant has been put in the position of being an appellant for no other reason than he is a male parent. He has been required to file an Objection and Notice of Appeal to a reassessment. He has been subject to time limitations, filing fees and other costs. He has been pre-judged and bears a burden of proof to rebut the presumption in favour of his former wife – a presumption she enjoys for no other reason than she is a female. Procedurally, he asserts that the presumption operates or operated in his case in a discriminatory manner. While the remedy for such discrimination, if proven, might include or require the striking of the impugned provisions, such remedy in itself would be of no assistance to the Appellant since, by virtue of my findings of fact as to which parent was the primary caregiver, he would still not be entitled to receive the CCTB. Regardless, the Appellant seeks recognition and redress of the discriminatory aspects and impact of the impugned provisions.
[17] This raises a question of the jurisdiction of this Court to go beyond a determination of the correctness of a liability determined on a reassessment. I have determined the correctness of the liability. Can I do more? The answer to this question requires an analysis of section 24 of the Charter which reads as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Jurisdiction under Section 24 of the Charter
[18] Before considering the question of the scope of this Court's jurisdiction under section 24 it is necessary to consider the interrelationship between section 24 of the Charter and section 171 of the ITA as well as the interrelationship between section 24 of the Charter and subsection 52(1) of the Constitution Act.
[19] Subsection 52(1) of the Constitution Act provides that the Constitution "is the supreme law of Canada, and any other law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect". The invalidity of a provision that violates rights guaranteed under the Charter then does not arise from a declaration of a court but from the operation of subsection 52(1). As stated by Gonthier J. in Nova Scotia (Workers' Compensation Board) v. Martin[4] at para. 28 "In principle such provision is invalid from the moment it is enacted" and every level of government including administrative organs of state may not apply invalid laws. In Schachter v. Canada[5] Lamare J. wrote at para. 87, page 719, that where section 52 of the Constitution Act is not engaged, a remedy under section 24 of the Charter may still be available: "This will be the case where the statute or provision in question is not in and of itself unconstitutional but some action taken under it infringes a person's Charter rights." Bringing these principles together it seems clear that even if the impugned provisions in the case at bar do not necessarily violate the Charter, it is open for the Appellant to seek recognition and redress under section 24 if the application of the impugned provision in his case infringed his Charter rights.
[20] The Respondent does not admit to this position and relies on Keyes v. Canada (M.N.R.)[6] as authority for limiting the jurisdiction of this Court not to do more than it is empowered to do under section 171 of the ITA. Subsection 171(1) of the ITA provides as follows:
171. (1) The Tax Court of Canada may dispose of an appeal by
(a) dismissing it; or
(b) allowing it and
(i) vacating the assessment,
(ii) varying the assessment, or
(iii) referring the assessment back to the Minister for reconsideration and reassessment.
In general terms this limits the jurisdiction of this Court to a determination of the correctness of an assessment.
[21] Keyes dealt with a husband's family allowance claim and the preference given to females under similar provisions as now contained in the CCTB provisions. Bonner J. of this Court found authority in Mills v. R.[7] to say that although this Court has jurisdiction to hear Charter challenges it is limited in the disposition of them by section 171 of the ITA. The task of the Court is to fit the remedy allowed under section 24 into the statutory scheme of the ITA. Otherwise, it is suggested in Mills that the legal system would be turned "upside down".
[22] With respect to the Respondent's position and reliance on Mills, as applied in Keyes, I do not agree that this Court's recourse under section 24 is so limited. This is broadly confirmed in Canada v. O'Neill Motors Ltd.[8] where at paragraph 10 Linden J. confirmed this Court's jurisdiction under section 24 to grant a remedy as is appropriate and just.
[23] In O'Neill Motors, Bowman A.C.J. vacated an assessment in respect of which an illegal search had been conducted. The illegal search violated the appellant's rights under the Charter and although the evidence so obtained could, under the Charter, be excluded, Bowman A.C.J. exercised his authority to invoke subsection 24(1) of the Charter which allows for any appropriate and just remedy. Arguably, using subsection 24(1) to vacate the assessment offers no precedent for this Court to apply a remedy beyond one statutorily provided for in section 171 of the ITA since the remedy actually invoked in that case was one within the scope of that section. However, in my view, the Federal Court of Appeal's affirmation of A.C.J. Bowman's decision goes further. It clearly acknowledges "the general authority given to the Court in subsection 24(1) to grant a remedy as is appropriate and just" (emphasis added).
[24] Further, I note that the jurisdiction of a statutory court to grant a remedy under section 24 of the Charter has been more recently dealt with in R. v. 974649 Ontario Inc.[9] In that case McLachlin C.J. confirmed the three requirements for a statutory court to have jurisdiction to grant Charter remedies under section 24 of the Charter. They are: (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction to grant the remedy.[10] The jurisdiction issue in that case, as in the case at bar, concerned the third requirement, namely jurisdiction to grant the remedy.
[25] McLachlin C.J. adopted a "functional and structural" approach to implying legislative jurisdiction to grant Charter relief under section 24.[11] Under this approach the relevant factors and their relative weight will vary with the circumstances at hand. A necessary factor to consider in regard to the function of the Court is any expression of its mandate.[12] A further but different factor to consider in regard to function is any expression of the type of remedy that it is authorized to grant.[13] This Court's mandate is set out in section 12 of the TCCA. This section grants this Court exclusive original jurisdiction to hear and determine references and appeals "on matters arising under ... the Income Tax Act". There is no question that this statement of the Court's mandate is broader than suggested by section 171. Indeed it supports this Court's general authority to consider appropriate remedies on a Charter challenge. Further, section 19.2 of the TCCA makes specific reference to constitutional questions where the validity, applicability or operability of an Act of Parliament or its regulations is before this Court. As in the case of other superior courts mandated to hear constitutional questions there is a requirement that the Attorney Generals be notified. This section of the TCCA clearly underlines Parliament's intention to embrace this Court as one whose function is to deal with constitutional issues arising under the ITA including questions regarding the operation of a provision of the ITA or its Regulations.
[26] The next question then is whether section 171 of the ITA which limits remedies available in respect of appeals before this Court, can reasonably be taken as an expression of Parliament to limit the remedies otherwise available under section 24 of the Charter when a Charter challenge is before it. While section 171 may appear to be a telling indicator of this Court's limited function, such appearance, in my view, is misleading for several reasons. Firstly, it ignores the Court's wider mandate. As well, the court has express jurisdiction to do more than set out in section 171. Section 173 affords this Court jurisdiction to hear on joint application "a question of law, fact or mixed law and fact arising under this Act, in respect of any assessment, proposed assessment, determination or a proposed determination". While this appeal is not a section 173 reference on a question of law, that seems entirely beside the point. The point is that this Court has on references before it, express statutory jurisdiction to make a finding of law which would surely include a Charter violation under the ITA in respect of a determination such as the one being appealed at the case at bar. To say that such jurisdiction exists without access, as a matter of its general authority, to a remedy under section 24 of the Charter would be self-contradictory. Further, I would suggest that the statutory authority in section 171 is there to recognize a level of expertise and experience with a subject matter over which it is given exclusive jurisdiction. This limits the jurisdiction of other Courts. However, to say other courts do not have authority to consider remedies under section 171 of the ITA is not to suggest that the Judges of this Court lack the training or experience to consider appropriate and just remedies under section 24 of the Charter, when it considers Charter challenges consistent with its mandate. Further still, statutory authority to grant particular remedies is just one factor to consider in the overall assessment of the function and structure of the Court. I would hope that there is little question that this Court having the tools, facilities, resources and personnel of a superior court of record is sufficiently equipped functionally and structurally to be recognized as having jurisdiction under section 24 of the Charter without encumbrance by virtue of section 171 of the ITA.[14] It is wholly consistent with this Court's function and processes to recognize its jurisdiction to employ just and appropriate remedies pursuant to section 24 of the Charter where applying the principles in Schachter as described above it determines that such remedies are available to an Appellant. Importantly as well, I note the remarks of Gonthier J. in Nova Scotia (Workers' Compensation Board) v. Martin:[15] "... Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts" (i.e. in the context of this case - "without the need for parallel proceedings before another court"). The Appellant in the case at bar should not be required to conduct this appeal in two forums: one in the Tax Court of Canada (as to his eligibility status) and one in the Federal Court of Canada (as to his entitlement to a section 24 remedy).
[27] In my view it is clear that this Court has jurisdiction to hear Charter questions respecting impugned provisions of the ITA or Regulations or the manner in which an impugned provision has been applied even under the informal procedure and the remedy available is that governed by the Charter.[16] Indeed, not only do section 24 of the Charter and subsection 52(1) of the Constitution Act trump section 171 of the ITA, they impose an obligation on this Court to consider the constitutional validity of provisions applied and relied on in an assessment, reassessment or determination and to either strike an invalid provision or invoke an appropriate and just remedy under section 24 of the Charter where impugned provisions are not in and by themselves unconstitutional but where some action taken under them has infringed on a person's Charter rights.[17]
[28] Accepting jurisdiction, I reiterate that in considering the Charter challenge in the context of the case at bar, there are two determinations required: firstly, whether the impugned provisions of the ITA and Regulations are invalid pursuant to subsection 52(1) of the Constitution Act which requires a determination as to whether such provisions in and by themselves violate the Appellant's rights under the Charter; and, secondly if the impugned provisions do not in and by themselves violate the Appellant's rights under the Charter, whether the provisions of the ITA and Regulations as applied have in an administrative or procedural way violated the Appellant's rights under the Charter. The Charter question so framed takes on a life of its own and must be dealt with irrespective of the possibility or even inevitability that the remedy may not include a favourable judgment for the Appellant on the tax liability issue before this Court. That I have found that the Appellant in the case at bar cannot, on the merits of his appeal, receive the CCTB claimed, does not prevent my addressing the procedural discrimination complained of. Otherwise such discrimination would always be ignored in this Court. That the impugned presumption has been found to correctly reflect the facts of this case, cannot be a bar to examining the Charter complaint.
[29] Before considering the impugned provisions of the ITA and Regulations in light of sections 15 and 28 of the Charter and addressing the two questions raised above, I note as another preliminary point that the enquiry into the discrimination claim in the case at bar is not foreclosed by the findings of this Court that the impugned presumption is rebuttable. That the presumption in favour of the female parent is rebuttable, is not sufficient to obviate concern over an infringement of a right guaranteed under the Charter. To suggest otherwise either precludes a determination of whether there is a procedural problem in this case in the administration of the subject provisions that infringes on the Charter as alleged by the Appellant or implicitly accepts that any such apparent infringement does not ultimately infringe on the Charter. Neither of these results can be defended.
[30] Support for this position can also be found in the analysis of the majority decision of the Supreme Court of Canada in R. v. Downey[18] delivered by Cory J. Although a case dealing with a presumption in the Criminal Code, impugned as violating paragraph 11(g) of the Charter, the analysis confirms that presumptions that affect burdens of proof, can violate a right guaranteed under the Charter. At page 29, summarizing seven principles dealing with presumptions, Cory J. wrote as principle III: "Even if a rational connection exists between the established fact and the fact to be presumed, this would be insufficient to make valid a presumption requiring the accused to disprove an element of the offence."
[31] This principle applies in my view to the impugned provisions in the case at bar which require the Appellant, by virtue of his gender, to disprove or rebut a presumed fact even if there is a rational connection between the established facts and the presumed fact. While the burden of proof and presumption of innocence in criminal cases can be said to be of greater importance and more worthy of protection, surely presumptions based on stereotypes affecting civil rights require similar consideration subject to a possible lowering of the justification bar as circumstances may dictate. Even more to the point, stereotypical presumptions are surely not less offensive simply because the person offended can disprove the presumption. The existence of the presumption is the evil that the Charter seeks to address if, based on a stereotype, it has given effect to discriminatory treatment. The question remains one of determining whether the Appellant's Charter rights have been violated by reason of gender discrimination.
The Charter Challenge – the Statutory Framework
[32] Preliminary issues aside then, it is necessary in considering the Charter challenge to first cite two further paragraphs of the ITA, namely, paragraphs (g) and (h), of the definition of "eligible individual" contained in section 122.6 of the ITA and sections 6301 and 6302 of the Regulations:
"eligible individual" in respect of a qualified dependant at any time means a person who at that time
. . .
and for the purposes of this definition,
. . .
(g) the presumption referred to in paragraph (f) does not apply in prescribed circumstances,
(h) prescribed factors shall be considered in determining what constitutes care and upbringing.
6301. (1) For the purposes of paragraph (g) of the definition of "eligible individual" in section 122.6 of the Act, the presumption referred to in paragraph (f) of that definition does not apply in the circumstances where
(a) the female parent of the qualified dependant declares in writing to the Minister that the male parent, with whom she resides, is the parent of the qualified dependant who primarily fulfils the responsibility for the care and upbringing of each of the qualified dependants who reside with both parents;
(b) the female parent is a qualified dependant of an eligible individual and each of them files a notice with the Minister under subsection 122.62(1) of the Act in respect of the same qualified dependant;
(c) there is more than one female parent of the qualified dependant who resides with the qualified dependant and each female parent files a notice with the Minister under subsection 122.62(1) of the Act in respect of the qualified dependant; or
(d) more than one notice is filed with the Minister under subsection 122.62(1) of the Act in respect of the same qualified dependant who resides with each of the persons filing the notices if such persons live at different locations.
6302. For the purposes of paragraph (h) of the definition of "eligible individual" in section 122.6 of the Act, the following factors are to be considered in determining what constitutes care and upbringing of a qualified dependant:
(a) the supervision of the daily activities and needs of the qualified dependant;
(b) the maintenance of a secure environment in which the qualified dependant resides;
(c) the arrangement of, and transportation to, medical care at regular intervals and as required for the qualified dependant;
(d) the arrangement of, participation in, and transportation to, educational, recreational, athletic or similar activities in respect of the qualified dependant;
(e) the attendance to the needs of the qualified dependant when the qualified dependant is ill or otherwise in need of the attendance of another person;
(f) the attendance to the hygienic needs of the qualified dependant on a regular basis;
(g) the provision, generally, of guidance and companionship to the qualified dependant; and
(h) the existence of a court order in respect of the qualified dependant that is valid in the jurisdiction in which the qualified dependant resides.
[33] The sections of the Charter upon which the Appellant relies is as follows:
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.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
. . .
28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
The Issue Reframed in Light of the Charter Challenge
[34] It is helpful at this point to review the assessment, objection and confirmation process that faced the Appellant prior to filing his Notice of Appeal.
[35] The Appellant first applied for the CCTB in April 2000. The application shows his status as single which was the case by then. It is not clear from the application what period or base taxation year was covered but in August 2000 he requested in writing that his CCTB claim be processed retroactively to March 1997. No elaboration as to his marital status between March 1997 and March 1999 was provided. The Respondent suggested at the hearing that it was misled by the Appellant not having acknowledged that he was married and living with his wife during that period, the relevant period. The Appellant denies that the misrepresentation was intentional however I have little hesitation in suggesting that he would have known or ought to have known that in refraining from making the distinction clear, he was misrepresenting facts that bore to his entitlement. He knew his wife had not filed tax returns or made CCTB claims for the relevant periods when they separated in March 1999. Given my impression of the Appellant and his former wife, I can readily see how hostilities between them might have contributed to an attitude that could result in either of them misleading the CCRA. However, while I make these observations in deference to the Respondent's position, I find them of no relevance. They have no bearing on the question of which parent actually was the primary caregiver and in respect of the Charter challenge, they have no bearing on the principle question that I will ultimately have to consider which is whether the CCRA relied on any factors that bore to the best interests of the qualified dependant in invoking the presumption in favour of the female parent in this case.
[36] In January 2001, presumably after having allowed the Appellant's claim, the CCRA questioned the Appellant's claim and sent him a questionnaire. The response to the questionnaire accurately described the Appellant's marital status during the relevant periods and that he was living in the same house with his then spouse and their son. Although not in evidence, it seems safe to assume that the CCRA was, after initially allowing the Appellant's claim for the CCTB for the relevant periods, facing a competing claim by the Appellant's former spouse by January 2001. As well the CCRA was aware that the Appellant's former wife had not declared in writing that the male parent (the Appellant) was the parent who primarily fulfilled the responsibility for the care and upbringing of their son as required under paragraph (a) of Regulation 6301 to negate the presumption, in favour of the female parent, in paragraph (f) of the definition of "eligible individual". Accordingly, the Respondent relied on the presumption and made its re-determination against the Appellant. The Appellant admitted he made no attempt to seek his former wife's consent to his receiving the CCTB but asserts that his having to ask for his wife's declaration is an affront to his dignity as a person guaranteed equal rights under the Charter.
[37] I note that one might assume that the CCRA sent the Appellant the questionnaire to help make an assessment, under section 6302 of the Regulations, of the Appellant's claim to have been the primary caregiver to his son during the relevant periods. However the Respondent has placed no reliance on the questionnaire. Indeed, the Respondent placed no reliance on any factual findings it may have made in respect of the Appellant's spouse being the primary caregiver of the couple's son. This is made abundantly clear in the Notice of Confirmation, which only referred to the presumption in favour of the female parent making no reference to Regulation 6302,[19] and in the Reply, which repeatedly refers to the initial determination being based on incorrect information (that the Appellant was not during the relevant periods married and living with his spouse) omitting any assumptions or assertions that the female parent was in fact the primary caregiver during the relevant periods. But for sending a questionnaire which was seemingly ignored, all I can see is that the re-determination, Confirmation and Reply are a lazy reliance on the presumption in favour of the female. The Reply does cite Regulation 6302 but offers no hint as to its relevance in the pre-hearing context. Certainly the Respondent's counsel was aware of its relevance and brought witnesses to support its application but that does not address the problem of the use of the impugned presumption before the hearing that made the Appellant the appellant. It seems clear, based on the Notice of Confirmation and the Reply, that the presumption in favour of the female parent alone has resulted in the denial of the CCTB and in the Appellant having to launch this appeal.
[38] It is in this context that I will now consider the Appellant's Charter challenge.
Charter Analysis
[39] In Law v. Canada,[20] three broad enquiries are to be considered in section 15 Charter cases. Summarily they are:
1. Has a distinction been drawn between the Appellant and others on the basis of a personal characteristic (or fail to take into account an existing disadvantaged position resulting in substantial differential treatment on the basis of a personal characteristic)?
2. If there is different or distinctive treatment, is the ground for that distinction enumerated, or analogous to a ground enumerated, in subsection 15(1) of the Charter?
3. If so, does the treatment discriminate by imposing a burden upon or withholding a benefit from the Appellant in a manner reflective of stereotypical applications of presumed personal characteristics or in a manner which has the effect of perpetrating or promoting the view that the Appellant is less capable or less worthy of recognition or value or not equally deserving of concern, respect and consideration?
[40] There can be no question that the Appellant is treated differently under the impugned provisions of the ITA and Regulations. Further, there can be no question that the basis for the distinction is a personal characteristic: he is the male parent of the qualified dependant as opposed to the female parent and is treated differently for that reason alone. The Notice of Confirmation and Reply relied entirely on the presumption under review. There is differential treatment by imposing the burden of an appeal process on the Appellant simply on the basis of gender. Further, the female parent is empowered to declare the male parent as the primary caregiver and to effectively make the initial determination of the male parent’s entitlement to receive the CCTB.
[41] Having determined that the differential treatment suffered/experienced by the Appellant is based solely on his sex, which is one of the grounds enumerated in subsection 15(1) of the Charter, it is necessary to go on to the third enquiry.
[42] The third enquiry under the Law test asks whether the differential treatment was discriminatory. In the present case, the question may be stated as follows:
Did the differential treatment discriminate by imposing a burden upon or withholding a benefit from the Appellant in a manner that,
(a) is reflective of stereotypical applications of presumed personal characteristics of male and female parents, or
(b) has the effect of perpetrating the view that the Appellant as a male is less capable or less worthy of recognition or value as a parent, or promoting the view that he is not deserving of equal respect and consideration in the determination of his role as a parent?
[43] The analysis of such question must consider whether the purpose of the Charter is served by finding that the differential treatment in this case is a violation of the Appellant's rights or whether there is a contextual justification for the existence of the impugned provisions. "Equality analysis under the Charter must be purposive and contextual".[21] Differential treatment "may be found not to engage the purpose of the Charter guarantee" or it may "not have the effect of imposing a real disadvantage in the social and political context of the claim".[22]
[44] An example, in the context of the case at bar, of differential treatment not "engaging" the Charter is found in the case of Weatherall v. Canada.[23] La Forrest J. at page 877 remarked that "Given the historical, biological and sociological differences between men and women, equality does not demand" equal search practices of male and female prison inmates. He found that there was a reality to the historical trend of violence by men against women not matched by any comparable trend of women as violent aggressors against men. Cross-gender searches were more threatening to historically disadvantaged women so the different treatment did not offend the Charter and was in any event saved by section 1.
[45] This argument may seem appropriate for the present case. Undoubtedly there is an historical concordance, based on sociological patterns, between the presumption of the female's parenting role and the role actually played by females. However unlike matters involving sexual aggression as considered in Weatherall, there is little or no biological basis for the impugned provision in the case at bar. For example the presumption favouring females in the parenting role is not based on biological traits attributable to birth mothers. This is evident in