George Calogeracos will get his chance to argue that the Income Tax Act discriminates against divorced parents who pay child support -- a view that even some judges at the Tax Court of Canada have endorsed.

Tax Court Judge Joe Hershfield yesterday adjourned the North Gower cook's case to give him time to prepare his arguments and meet legal notification obligations.

Mr. Calogeracos, who divorced in 2006, is challenging a tax act provision that denied has claim for the "equivalent-to-married" tax credit for one of his two daughters because he was paying child support.

Though he now has full custody, until recently, Mr. Calogeracos shared custody with his former wife. She was able to claim the $7,500 deduction for one daughter, but his claim for their other daughter was disallowed.

In past rulings, several tax court judges have agreed the provision is inequitable.

"I agree that there is an obvious unfairness where separated or divorced parents have joint custody of children," Justice Donald Bowman wrote last year in a case almost identical to that of Mr. Calogeracos.

"Unfortunately," he added in dismissing the appeal by Lorne Hamilton, "the law is clear."

Dismissing a similar appeal in 2004, Justice François Angers commended the applicant, Queen's University professor Judith Irwin, "for trying to seek redress for what she clearly believes to be an unfair tax result. I regret that my decision cannot be more favourable."

Just last December, another tax court judge, Eugene Rossiter, was even blunter in dismissing a challenge by Brian Cornelius, the minister of First United Church on Richmond Road.

Like Mr. Calogeracos, Mr. Cornelius shares custody of his two children with his wife, from whom he separated in 2004. But because he was paying child support, he, too, was denied the equivalent-to-spouse deduction.

Judge Rossiter's decision has not yet been posted on the tax court's website. But according to Rev. Cornelius, "He spoke about this 'grievous injustice' and in essence said to the Justice Department, 'Why haven't you done something about this?' "

Rev. Cornelius said Judge Rossiter told the department to either change the offending provision or give tax court judges the power to rule on its fairness.

Yesterday, Mr. Calogeracos had planned to argue the provision violates the Charter of Rights by discriminating against men, who still make most child support payments.

But to raise a Charter of Rights argument, he was legally obliged to give 10 days' notice to provincial and federal attorneys general -- a requirement he only learned about from the Justice Department late last week.

After the adjournment, Mr. Calogeracos, who works at an Ottawa Greek restaurant, said he hopes to get legal help with his challenge, perhaps from a lawyer offering his services pro bono.

"When you get into this level of argument," he said, "it's a little bit over my head."

Meanwhile, Ottawa Centre MP Paul Dewar, who is Mr. Calogeracos's MP, is calling on the government to amend the law to make both divorced parents eligible for the deduction -- formally known as the eligible dependent credit -- in joint custody situations.

Last month, he wrote to Revenue Minister Gordon O'Connor, asking him to amend the Income Tax Act "to ensure that it can be applied in a fair manner." If the government doesn't respond, Mr. Dewar said yesterday he will introduce a private member's bill to change the offending provision.

After being denied the exemption in 2004 and 2005, Rev. Cornelius was able to successfully claim it in 2006. But in order to do so, he and his wife were forced to rewrite their separation agreement.

Though they still do everything jointly, Rev. Cornelius now has primary financial responsibility for one of the couple's children, for whom he receives child support from his former wife. She, in turn, now has primary financial responsibility for their other child, for whom he pays child support.

The arrangement apparently passed muster with the Canada Revenue Agency, which accepted claims for the equivalent-to-spouse deduction from both parents in 2006.

"It's not the solution that we wanted," Rev. Cornelius said yesterday. "It's what we were forced to do."

Mr. Dewar said the Income Tax Act hasn't kept up with changing social mores that have seen more couples opt for joint custody after separation or divorce.

© The Ottawa Citizen 2008