T-3470-81
The Queen (Plaintiff)
v.
Brenda A. Robichaud (Defendant)
Trial Division, Marceau J.—Moncton, March 22;
Ottawa, April 22, 1983.
Income tax — Income calculation — Deductions — Defend
ant claiming deduction under s. 109 as married person sup
porting spouse — Husband allowed similar deduction —
Whether two-way marital deduction authorized under Act —
Appeal allowed — "Support" in s. 109 related to subsistence
— "Supported" meaning dependent of other, i.e., deriving
means of subsistence from other — Dependant cannot be
supporter of own supporter — Deduction under s. 109 for
support of spouse, not for household expenses — Income Tax
Act, S.C. 1970-71-72, c. 63, s. 109(1) (as am. by S.C. 1973-74,
c. 30, s. 11; 1976-77, c. 4, s. 42).
The defendant claimed, for the 1977 taxation year, the
deduction allowed under paragraph 109(1)(a) of the Income
Tax Act on the basis that, in 1977, she had been a married
person who had supported her spouse whose income, in 1977,
during the seven days they had been married, had not exceeded
$250. The Minister disallowed the deduction on the ground
that her husband had already been allowed a similar deduction
under the same section and on the same basis. The Tax Review
Board, satisfied that the requirements of paragraph 109(1)(a)
were met, allowed the defendant's claim on the ground that the
amounts expended by the defendant in the month preceding her
marriage had been made for commodities used after the mar
riage (suit, food, cablevision) and had to be considered as
expenses made to support her spouse after the marriage. The
issue—whether a two-way marital deduction is possible for
spouses under the Act—turns on the interpretation of the word
"support" in section 109.
Held, the appeal should be allowed. The deduction under
section 109 is for the support of a spouse, not for household
expenses. The word "support" and the French expression sub-
venir aux besoins convey the meaning of being a source of
subsistence, sustenance or living. Where a person is supported
by another, either totally or partially, that person is a depend
ant of the other, i.e., derives his or some of his means of
subsistence from the other. A dependant cannot be the support
er of his own supporter. In the case at bar, the defendant failed
to establish that she had supported her husband during the
marriage.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Johnston v. Minister of National Revenue, [ 1948] S.C.R.
486.
COUNSEL:
Paul Plourde for plaintiff.
Peter Beardsworth for defendant.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Beardsworth & Wright, Riverview (New
Brunswick), for defendant.
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The point at issue in this appeal
by the Deputy Attorney General of Canada
against a decision of the Tax Review Board is
narrow and straightforward and one has difficulty
in trying to understand how it has not yet given
rise to a decision of the Court. It relates to the well
known marital exemption section of the Income
Tax Act, subsection 109(1) [S.C. 1970-71-72, c.
63, as am. by S.C. 1973-74, c. 30, s. 11; 1976-77,
c. 4, s. 42] which, for convenience, I should
reproduce here:
109. (1) For the purpose of computing the taxable income of
an individual for a taxation year, there may be deducted from
his income for the year such of the following amounts as are
applicable:
(a) in the case of an individual who, during the year, was a
married person who supported his spouse, an amount equal
to the aggregate of
(i) $1,600, and
(ii) $1,400 less the amount, if any, by which the spouse's
income for the year while married exceeds $300;
(b) in the case of an individual not entitled to a deduction
under paragraph (a) who, during the year,
(i) was an unmarried person or a married person who
neither supported nor lived with his spouse and was not
supported by his spouse, and
(ii) whether by himself or jointly with one or more other
persons, maintained a self-contained domestic establish
ment (in which the individual lived) and actually support
ed therein a person who, during the year, was
(A) wholly dependent for support upon, and
(B) connected, by blood relationship, marriage or adop
tion, with
the taxpayer, or the taxpayer and such one or more other
persons, as the case may be,
an amount equal to the aggregate of
(iii) $1,600, and
(iv) $1,400 less the amount, if any, by which the income
for the year of the dependent person exceeds $300;
The defendant taxpayer, Brenda A. Robichaud,
married on December 23, 1977 and from then on
resided with her husband. Throughout that year
1977, she and her husband had been both
employed; she had earned $8,467.30 while her
husband had earned about twice as much. In filing
her 1977 income tax return, the defendant claimed
entitlement to the deduction allowed under para
graph 109(1)(a) of the Act on the basis that, in
1977, she had been a married person who had
supported her spouse whose income in that year
during the seven days they had been married had
not exceeded $250. Since her husband had himself
already claimed and been allowed a similar deduc
tion under the same section and on the same basis,
the Minister denied the defendant's claim. The
Board, on appeal, did not agree with the Minister
and decided that the defendant, in the circum
stances, was entitled to the marital deduction as
well as her husband. Is such a two-way marital
deduction a possibility for spouses under the Act?
This is the point the Minister seeks to clarify by
asking this Court to quash the decision of the
Board setting aside his assessment.
The member of the Board called upon to hear
the appeal first accepted evidence to the effect that
the defendant, in the month preceding her mar
riage, had expended moneys for the mutual benefit
of herself and her future husband. He noted that
the defendant had indeed, jointly with her future
spouse, borrowed $3,000 of which $2,720.30 was
used to pay the down payment on a residence they
were acquiring. He noted also that she had paid at
one occasion $129.95 and at another $33 to pur
chase and alter clothing for her spouse; she had
given her spouse $37.10 for his personal use; had
paid $27.15 for cablevision and $54 towards insur
ance on their new residence. The member of the
Board then recalled three well-established proposi
tions with respect to the proper construction to be
given to subsection 109(1) namely: (a) the require
ment that the taxpayer has supported his spouse
during the year is not dependent on any time
factor, the phrase "during the year" meaning "in
the course of the year" not "throughout the year";
(b) it is not part of the requirement that the
taxpayer has "wholly" supported his spouse; (c)
the taxpayer may have supported his spouse
despite the fact that the latter has had during the
year an independent income. On the basis of these
three propositions and a finding that the expenses
of the defendant, having been made "for commodi
ties which were used after the marriage (suit, food,
cablevision)", had to be "considered as expenses
made to support (her) spouse after the marriage",
the member simply declared himself satisfied that
the requirements of paragraph 109(1)(a) were
met.
I have some difficulty in following the member's
analysis and especially I do not see clearly the
place assigned in his reasoning to the three propo
sitions referred to. Much emphasis was very ably
reserved by counsel for the defendant on the third
of the three propositions, for the added support of
which special reference was made to the decision
of the Supreme Court in Johnston v. Minister of
National Revenue, [1948] S.C.R. 486 where Kel-
lock J. in the course of his reasons had said [at
page 493]: "I think a husband may continue to
support his wife within the meaning of the statute
although his wife may supply some money toward
meeting the cost of maintenance of the
household." However, between the one proposition
that a married person may support his or her
spouse in spite of the fact that the latter has an
independent revenue and contributes some moneys
toward household expenses and the other proposi
tion that a married person may at the same time
support and be supported by his or her spouse
there is, in my view, a gap which I do not think
can be bridged.
It seems to me that the decision of the Board
simply eludes the real question that has to be
addressed which is whether or not the defendant
has "supported" her husband within the meaning
of the Act. It simply assumes that because the
defendant has made some expenses for the mutual
interest of the couple, she has supported her hus
band but this is a completely unjustified assump-
tion. It is unjustified for the very reason that the
words used must be given their meaning and
effect. The deduction is for supporting a spouse
not merely for making household expenses.
In my view, the English word "support" and the
French corresponding phrase subvenir aux besoins
necessarily convey the meaning of being a source
of subsistence, sustenance or living. He who is
supported by another, be it totally or only partial
ly, is a dependant of the other, i.e. derives his or
some of his means of subsistence from the other.
That being so, it seems to me somewhat difficult to
suggest that a dependant could be the supporter of
his own supporter.
In my view, the defendant whose wages were
half those of her husband has never established
that she had supported her husband during the
marriage. The assessment of March 19, 1979, by
which the Minister disallowed the deduction she
had claimed under subsection 109(1) was there
fore well founded and must be restored. Judgment
will go accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.