No Discrimination in Paying Child Support

The Tax Court of Canada (TCC) recently dismissed an appeal from a taxpayer who asserted that an Order from the Ontario Superior Court of Justice obligating him to pay child support and the application of subsection 118(5) of the Income Tax Act (the Act) infringed his rights under section 15 of the Canadian Charter of Rights and Freedoms (the Charter).

The first problem for the appellant in D'Ambrosio v. the Queen was that his Charter argument should have been made before the court that made the Order. His second problem was the total absence of evidence that would allow Justice Miller to ignore the Order.

He noted that subsection 118(5) of the Act reads:

118(5) No amount may be deducted under subsection (1) in computing an individual's tax payable under this Part for a taxation year in respect of a person where the individual is required to pay a support amount (within the meaning assigned by subsection 56.1(4)) to the individual's spouse or common-law partner or former spouse or common-law partner in respect of the person and the individual

(a) lives separate and apart from the spouse or common-law partner or former spouse or common-law partner throughout the year because of the breakdown of their marriage or common-law partnership; or

(b) claims a deduction for the year because of section 60 in respect of a support amount paid to the spouse or common-law partner or former spouse or common-law partner.

The facts clearly revealed that subsection 118(5) was properly applied to deny tax credits under subsection 118(1) in the circumstances. The appellant was required to pay child support amounts to his spouse in respect of his son as he and his spouse lived separate and apart during the years in question because of a breakdown of their marriage.

The appellant called the implications of these legislative provisions “effective discrimination” as the court “presumed” he made more money than his spouse.

Many judges have considered whether subsection 118(5) violates section 15 of the Charter. It has been consistently held that the provision does not contravene the Charter because it does not draw a distinction between the appellants and a comparator group based on personal characteristics, or the stereotypical application of a presumed group or personal characteristics, and does not bring into play the purpose of the Charter provision which is remedying ills such as prejudice, stereotyping, and historical disadvantage.

Greer Jacks is updating jurisprudence in EverGreen Explanatory Notes, an online research library of assistance to tax and financial professionals in working with their clients.