Date: 20021028
Docket: 2001-3255-IT-I
BETWEEN:
HOWIE A. HEWKO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
ATTORNEY GENERAL OF ALBERTA,
Intervenor.
Reasons for Judgment
Bowie J.
[1] I heard this appeal on February 21, 2002. On July 2, 2002, I ordered that notice should be given to the Attorneys General of the provinces under section 57 of the Federal Court Act that the validity of section 34 (now section 41) of the Maintenance Enforcement Act (MEA) of Alberta[1] had been called into question. Only the Attorney General of Alberta expressed an intention to make submissions. The hearing of the appeal was resumed by telephone conference for that purpose on October 17, 2002, along with the appeal of Fraser v. The Queen[2] in which the identical issue had arisen. The Attorney General of Canada and the Attorney General of Alberta made submissions. The Appellant was invited to make submissions but chose not to.
[2] Section 41 of the MEA provides:
For the purposes of the Income Tax Act (Canada) a spouse includes a person who is required to make periodic payments in respect of maintenance under a written agreement or a maintenance order.
[3] At the time I made the Order referred to above, I gave Reasons in which I concluded that the child maintenance payments made by the Appellant under a written agreement which had been filed in the Alberta Court of Queen's Bench under the MEA would not be deductible in the computation of his income unless he could establish that he and the recipient of the payments were, or had at some time been, spouses. This, of course, brought section 41 of the MEA into issue. If that provision is valid and operative then the Appellant is entitled to succeed in this appeal.
[4] It is trite that the legislatures of the provinces cannot legislate beyond the powers granted to them in section 92 of the Constitution Act, 1867. Those powers do not include the amendment of federal legislation validly enacted under section 91. Counsel for the Attorney General of Alberta accepted in the course of his submission that section 41 of the MEA could not have that effect. His position was that it was enacted at a time when the Income Tax Act of Canada provided in paragraph 60(c.1) of the Income Tax Act for the deduction of payments of child support made pursuant to an order of a competent tribunal to "an individual within a prescribed class of persons described in the laws of a province". It was by this cumbersome legislative mechanism that Parliament sought to deal with the question of the deductibility of maintenance payments made by one common-law spouse to the other. For those provinces where there was a legislated recognition of the relationship, the class described by provincial law could be prescribed by order-in-counsel. Alberta's position is that section 41 of the MEA was intended to describe a class of persons which could then be prescribed, and nothing more. In view of counsel's concession that section 41 was spent upon the amendment of paragraph 60(c.1) of the Income Tax Act to remove the reference to a class of persons described in provincial legislation, and that it is now ineffective, it is unnecessary for me to inquire further into its constitutional validity. It is difficult, however, not to wonder how the drafter could have thought that section 41 of the MEA described a class of persons,[3] and also why section 41 was recently consolidated and renumbered as part of Alberta's Revised Statutes 2000.
[5] Counsel for Alberta also brought to my attention an unreported decision of the Alberta Court of Queen' Bench[4] wherein Smith J. held that a maintenance order made by the Provincial Court of Alberta, once filed in the Court of Queen's Bench, can only be varied by that Court, by reason of the deeming provision found in subsection 12(1) of the MEA. This, he said, supported the view taken by Teskey J. in Hollands v. The Queen.[5] I do not agree. As I said in paragraphs 7 and 8 of my earlier Reasons in this matter, the deeming provisions are restricted in their operation to the scope and purpose of the MEA. That is because the Alberta legislature clearly expressed that intention. The orders that were before Smith J., although made under the Domestic Relations Act of Alberta, were filed under, and so were being enforced under, the MEA. Nothing in his decision conflicts with the Reasons that I gave on July 2, 2002.
[6] I must dismiss this appeal. Before leaving the matter, though, I cannot help but observe that it is a peculiar legislative policy that leads Parliament to provide a deduction in the computation of income to the non-custodial parents of children, where no spousal relationship is involved, if they resist fulfilling their responsibility and are later required to do so by a court order, while denying the deduction to those who volunteer to carry their share of the financial burden of parenthood by entering into a support agreement. It must be a rare individual who is sufficiently astute, or well advised, to insist upon having a consent order made to implement his voluntarily assumed obligation.
Signed at Ottawa, Canada, this 28th day of October, 2002.
|
"E.A. Bowie" |
J.T.C.C.
COURT FILE NO.: 2001-3255(IT)I
STYLE OF CAUSE: Howie A. Hewko and
Her Majesty the Queen and
Attorney General of Alberta
PLACE OF HEARING: Edmonton, Alberta and Ottawa, Ontario
DATE OF HEARING: February 21, 2002 and October 17, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge E.A. Bowie
DATE OF JUDGMENT: October 28, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Margaret McCabe
Counsel for the Intervenor: Rod Wiltshire
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm: N/A
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
For the Intervenor: Rod Wiltshire
2001-3255(IT)I
BETWEEN:
HOWIE A. HEWKO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent,
and
ATTORNEY GENERAL OF ALBERTA,
Intervenor.
Appeal heard on February 21, 2002, at Edmonton, Alberta, and
by telephone conference on October 17, 2002, at Ottawa, Ontario, by
the Honourable Judge E.A. Bowie
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Margaret Irving and Margaret McCabe
Counsel for the Intervenor: Rod Wiltshire
JUDGMENT
The appeal from the reassessment of tax made under the Income Tax Act for the 1999 taxation year is dismissed.
Signed at Ottawa, Canada, this 28th day of October, 2002.
|
"E.A. Bowie" |
J.T.C.C.