Citation: 2012 TCC 41
Date: 20120201
Docket: 2011-1953(IT)I
BETWEEN:
MICHAEL E. DUKE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Sheridan J.
[1]
The Appellant, Michael Duke, is
appealing the reassessment under the Income Tax Act (the “Act”)
of his 2009 taxation year.
[2]
In reassessing, the Minister of
National Revenue disallowed his claim for non-refundable tax credits in respect
of one of his two children for a “wholly dependant person” under paragraph
118(1)(b) and a “child amount” under paragraph 118(1)(b.1) of the
Act. The basis for the Minister’s reassessment was subsection 118(5)
which states that no amount may be deducted under the above provisions where
the taxpayer is required to pay a support amount under subsection 56.1(4) in
respect of the person for whom the deduction is claimed.
[3]
The Appellant’s position is that
although in 2009 there was an order in place which required him to pay child
support, it no longer reflected the reality of the children’s custodial
arrangements; he argued further that the order is so vaguely worded as not to
bring his situation within subsection 118(5).
[4]
The Appellant was the only witness
to testify. In 2008, he and the mother of their two children (“Children’s
Mother”) separated. On February 20, 2008, an order (“2008 Order”) was issued, the relevant
portions of which read:
…
UPON the Court
being advised that the name and birth dates of each child is as follows:
M.J.D.-G, born November 11, 2003
L.A.D.-G., born November 25, 2005
(the “Children”)
…
THIS COURT ORDERS that:
1.
[the Appellant] payor,… pay to [the Children’s mother], recipient, for
the interim support of the Children, the sum of $300.00 per month, being
$150.00 on the 1st and 15th of each and every month,
commencing March 1st, 2008 until further order of this Court…
[5]
The 2008 Order was subsequently
varied by an order dated May 28, 2009 (“2009 Order”), the relevant provisions of
which read:
…
UPON the name
and birth date of the biological children of the [Children’s Mother] and the
[Appellant] as follows:
M.J.D.-G, born November 11, 2003
and,
L.A.D.-G., born November 25, 2005
(the “Children”)
…
THIS COURT
ORDERS by consent that the [2008 Order], shall be varied as follows:
1.
The parties shall share joint guardianship and joint custody of the
Children.
2.
The parties shall have split primary residence of the Children with the
[Appellant] having primary care and residence of M.J.D.-G.; and the [Children’s
Mother] having primary care and residence of L.A.D.-G.
3.
The “Parenting Schedule” and the access to the Children shall be as
follows:
a)
That the Defendant have access to the child, L.A.D.-G.
i) every weekend from 3 p.m. on Friday until 8 p.m. on
Sunday.
ii) from 3 p.m. until 8 p.m. on Monday, Tuesday, Wednesday
and Thursday.
b)
That the Plaintiff have access to the child, M.J.D.-G;
i) from
8 p.m. on Sunday until 3 p.m. on Monday.
c)
The Defendant returns the child M.J.D.-G. to the Plaintiff’s house at
6:45 a.m. every Tuesday, Wednesday and Thursday to facilitate the timing of the
defendant’s work schedule and for the plaintiff to drop the child off at
school.
…
6. The Child Support shall be varied to provide pursuant to the Federal
Child Support Guidelines that the [Appellant] shall pay the [Children’s
Mother] $550.00 a month, payable commencing on the first day of June, 2009 and
continuing on the 1st day of each and every month.
[6]
The Appellant’s evidence was that
regardless of the custody arrangements provided for in the 2008 Order and the
2009 Order, in 2009 he was, in fact, taking care of both children. As a result,
he stopped paying child support to the Children’s Mother. In these
circumstances, he argued, he ought to be able to claim the wholly dependant
person and child amount deductions for the child who was ordered to be in the
primary care and residence of the Children’s Mother. However, as was discussed
with the Appellant during the hearing, as long as the 2009 Order requiring the
payment of child support is in effect, he is bound by its terms. Accordingly,
even if he did not pay the child support ordered does not mean he was not “required
to” within the meaning of subsection 118(5) of the Act.
[7]
The Appellant’s alternative
argument was that paragraph 6 of the 2009 Order does not specify for whom the child
support was to be paid. Accordingly, the Court ought to interpret it to mean that
he was required to pay child support only in respect of one of the children.
[8]
While out of sympathy for the
Appellant’s circumstances it would be tempting to accept that argument, it
would, I think, be wrong in law. The 2009 Order must be read in light of the
2008 Order. The child support ordered to be paid in the 2008 Order was in
respect of the ‘Children”, a term clearly defined in the preamble to the 2008
Order (reproduced above) as including both M.J.D.-G. and L.A.D.-G. Any
ambiguity there may be in the 2009 Order is dispelled by the reference in its
preamble to the same two Children. Notwithstanding the “Parenting Schedule”
setting out the details of the custodial arrangements for the Children, nothing
in the 2009 Order suggests any change to the Appellant’s requirement in the
2008 Order to pay child support in respect of both Children.
[9]
For these reasons, the appeal from
the reassessment of the 2009 taxation year must be dismissed.
Signed at Ottawa, Canada this 1st day of February 2012.
“G. A. Sheridan”
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