This case challenged the constitutionality of the provision in the Income Tax Act which required individuals who received child support payments to report them as taxable income.  

LEAF, with the support of West Coast LEAF, intervened before the Supreme Court of Canada, in coalition with: 

• Charter Committee on Poverty Issues 
• Federated Anti-Poverty Groups of B.C. 
• National Action Committee on the Status of Women 

Facts 

Suzanne Thibaudeau obtained custody of her two children following her divorce from her ex-husband. Her ex-husband was ordered to pay her child support. Under the Income Tax Act, child support payments counted as taxable income for the recipient. However, the person who paid child support was allowed to deduct the amounts from their income. Ms. Thibaudeau argued that requiring her to count child support payments as taxable income violated her equality rights under s. 15 of the Charter.  

The Tax Court of Canada found that the Income Tax Act did not violate Ms. Thibaudeau’s equality rights. A majority of the Federal Court of Appeal disagreed, and held that the provision violated s. 15 based on family status and could not be saved under s. 1. The federal government appealed to the Supreme Court of Canada. 

LEAF’s arguments 

LEAF argued the Court needed to engage in an intersectional analysis, and recognize that the provision in the Income Tax Act discriminated based on sex and family status together. The Court of Appeal’s decision, which focused only on family status, relied on a formal approach to equality and was incorrect. 

In this case, the provision distinguished between separated parents and non-separated parents, imposing higher tax burdens on separated parents with custody of children. It also distinguished between separated custodial and non-custodial parents, because of these higher tax burdens. The provision created a burden by imposing an additional tax liability whose impact disproportionately fell on women and, in particular, on poor single mothers.  

Outcome 

A majority of the Supreme Court held that the provision did not violate s. 15, as it did not impose a burden on individuals receiving child support payments.  

While the decision was not what LEAF had hoped for, it helped to spur community mobilization that led the Canadian government to amend the Income Tax Act in 1997. The amendments changed the law so that custodial parents did not have to report child support payments as taxable income, and non-custodial payments could not deduct child support payments from their income.  

LEAF is grateful to Katherine Hardie and Gwen Brodsky, counsel in this case, as well as Philippa Lawson, Ottawa agent for LEAF. 

Download the factum here.

Read the Supreme Court of Canada’s decision here. 

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].