Date: 10091999

Docket: A-226-98

CORAM:      MARCEAU J.A.

         DESJARDINS J.A.

         LÉTOURNEAU J.A.

BETWEEN:

     CHERYL LYNNE KUCHTA

     Applicant

AND:

     HER MAJESTY THE QUEEN

     Respondent

     Heard at Vancouver, B.C., Friday, September 10, 1999

     Judgment delivered from the Bench at Vancouver, B.C., Friday, September 10, 1999

REASONS FOR JUDGMENT OF THE COURT BY:      LÉTOURNEAU J.A.

Date: 10091999

Docket: A-226-98

CORAM:      MARCEAU J.A.

         DESJARDINS J.A.

         LÉTOURNEAU J.A.

BETWEEN:

     CHERYL LYNNE KUCHTA

     Applicant

AND:

     HER MAJESTY THE QUEEN

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Vancouver, B.C.

     on Friday, September 10, 1999)

LÉTOURNEAU J.A.

[1]      Notwithstanding the able argument of counsel for the applicant, we can see no error in the Tax Court judge's decision which would require or justify our intervention. We agree with the Tax Court judge that paragraph 3(f) of the Income Tax Act (Act), in its actual form, is bound to and does create some injustice in rare cases such as the present one where the taxpayer's spouse who incurred a business loss for the taxation year is deemed to have a positive income in an amount equal to zero. As a result, the taxpayer's spouse ends up with an income lower than that of the taxpayer and, therefore, is, as a supporting person, the one who, under subsection 63(2) of the Act, is entitled to claim the deduction for child care expenses, such entitlement being of no use to him in the circumstances.

[2]      The end result in the present case is unfortunate, but the law is clear and leaves the courts with no other choice than to apply it as it is.

[3]      Regretfully, we have to dismiss this application. The respondent is entitled to Her costs if required.

     "Gilles Létourneau"

     J.A.