Date: 20050519
Docket: A-292-03
Citation: 2005 FCA 195
CORAM: DESJARDINS J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
KWASI OFORI-NIMAKO
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on May 12, 2005.
Judgment delivered at Ottawa, Ontario, on May 19, 2005.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
SHARLOW J.A.
[1] The applicant seeks a judicial review of a decision of the Tax Court of Canada (Ofori-Nimako v. Canada, [2003] 4 C.T.C. 2130 (T.C.C.), which dismissed his appeal against an assessment by the Minister of National Revenue (the Minister) for the 1999 taxation year. The key issue in this application is whether an amount of money paid in 1999 by the applicant to his daughter qualifies as a "support amount", a term found in subsection 56.1(4) of the Income Tax Act, R.S.C. 1995 c. I (5th Supp.) (the Act). Subsection 56.1(4) of the Act reads:
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56.1.(4) "support amount" « _pension alimentaire_ »
"support amount" means an amount payable or receivable as an allowance on a periodic basis for the maintenance of the recipient, children of the recipient or both the recipient and children of the recipient, if the recipient has discretion as to the use of the amount, and
(a) the recipient is the spouse or common-law partner or former spouse or common-law partner of the payer, the recipient and payer are living separate and apart because of the breakdown of their marriage or common-law partnership and the amount is receivable under an order of a competent tribunal or under a written agreement; or
...
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56.1.(4) « _pension alimentaire_ » "support amount"
« _pension alimentaire_ » Montant payable ou à recevoir à titre d'allocation périodique pour subvenir aux besoins du bénéficiaire, d'enfants de celui-ci ou à la fois du bénéficiaire et de ces enfants, si le bénéficiaire peut utiliser le montant à sa discrétion et, selon le cas:
a) le bénéficiaire est l'époux ou le conjoint de fait ou l'ex-époux ou l'ancien conjoint de fait du payeur et vit séparé de celui-ci pour cause d'échec de leur mariage ou union de fait et le montant est à recevoir aux termes de l'ordonnance d'un tribunal compétent ou d'un accord écrit;
...
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[2] The applicant was married in Ghana in 1974 to Elizabeth Ofori. He moved to Canada in 1987, without his wife and children. An order of the Circuit Court in Ghana, dated June 11, 1994, confirmed the dissolution of the marriage and also confirmed the obligation of the appellant, as of September 15, 1992, to pay an amount of $8,000.00 yearly as alimony to Ms. Ofori for the maintenance of her children and herself.
[3] The applicant paid this amount of $8,000.00 for each taxation year 1995, 1996, 1997 and 1998. He claimed and was allowed to deduct spousal support payments in the amount of $8,000.00 in each of these taxation years.
[4] In 1999, the applicant sent an amount of $8,000.00 to his daughter in Ghana to enable her to pay her living expenses and her college tuition fee. His daughter confirmed by statutory declaration that she received that amount.
[5] The Minister denied the deduction. The Tax Court Judge affirmed, being of the view that the payment did not meet the requirement of subsection 56.1(4) of the Act. The Tax Court Judge indicated that the money had been paid to the daughter rather than the ex-spouse. Moreover, the ex-spouse never had discretion as to the use of the amount.
[6] The documents which the applicant filed with the Minister, and later with the Tax Court, were all accepted. They included the order of the Circuit Court in Ghana, described above, and the statutory declaration of the daughter acknowledging the receipt of the money in 1999.
[7] Before us, the applicant sought to adduce as evidence a further affidavit signed by his ex-spouse in which she stated that she received $8,000.00 from her daughter as payment for her alimony in 1999.
[8] The applicant recognized that this new evidence was not before the Tax Court Judge. He explained that the affidavit of the ex-spouse had not yet arrived when the hearing took place. He did not indicate to the Tax Court Judge that such a document had been requested or that it was in the mail. He never asked for an adjournment of the proceedings until the document arrived.
[9] The affidavit of the ex-spouse cannot be considered by us in this judicial review application since the Tax Court Judge cannot be found in error for evidence that was not before him (Ray v. Canada, 2003 DTC 5596 (FCA)).
[10] The Tax Court Judge made no error in deciding as he did with the evidence he had. The payment the applicant made to his daughter in 1999 does not fall within the meaning of the term "support amount" as defined in subsection 56.1(4) of the Act.
[11] This application should be dismissed with costs for one counsel.
(s) "Alice Desjardins"
J.A.
"I agree.
Marshall Rothstein J.A."
"I agree.
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-292-03
STYLE OF CAUSE: KWASI OFORI-NIMAKO and ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: MAY 12, 2005
REASONS FOR JUDGMENT : DESJARDINS JA
CONCURRED IN BY: ROTHSTEIN JA
SHARLOW JA
DATED: MAY 19, 2005
APPEARANCES:
Kwasi Ofori-Nimako For the Applicant
Catherine Letellier de St-Just
P. Michael Appavoo For the Respondent
SOLICITORS OF RECORD:
Kwasi Ofori-Nimako For the Applicant
Georgetown, ON
John H. Sims, Q.C. For the Respondent
Deputy Attorney General
of Canada
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