Sex, Tax and the Charter: A Review of Thibaudeau v. Canada

Section 15 of the Charter offers the promise of redressing many systemic inequalities in the law. This paper considers the implications of section 15 for the taxation of child support payments, an issue raised in the Thibaudeau case. While endorsing the Federal Court of Appeal's decision that the current tax regime is unconstitutional, the authors take issue with the Court's reasoning in reaching this result. In the first part of their paper, the authors address a number of shortcomings in the Court's equality analysis, arguing that the process employed by the Court ignored critical aspects of equality theory. The process of categorization in equality analysis (its inevitability, inexactness and complexity) is discussed. In the paper's second part, the arguments raised by the federal government to justify its legislative scheme are examined. Most troubling, the authors argue, is that each rationale proceeds from and reinforces familial ideologies which render child support largely a matter of private transfers from men to women. Lastly, a cautionary note about the use of the Charter to redress social and economic inequality is provided. Judicial decisions under section 15 of the Charter should be considered only as the beginning of a larger political process intended to relieve conditions of dis-advantagement.