[OFFICIAL ENGLISH TRANSLATION]
Date: 20020814
Docket: 2001-3847(IT)I
BETWEEN:
RODRIGUE JONCAS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Angers, J.T.C.C.
[1] These appeals were heard under the
informal procedure at Matane, Quebec, on May 29, 2002. In a
Notice of Reassessment dated November 14, 2000, the Minister
of National Revenue ("the Minister") disallowed the
amounts of $4,800 and of $5,300 that the appellant paid as
support and claimed as deductions for the 1998 and 1999 taxation
years respectively. The Minister also disallowed the amount of
$5,617 claimed as a deduction for employment expenses for
the 1999 taxation year.
[2] At the beginning of the hearing,
the appellant abandoned his appeal from the Minister's
decision to disallow the amount claimed as a deduction for
employment expenses. Thus the appeals deal solely with whether
the support is deductible for the 1998 and 1999 taxation
years.
[3] In making these reassessments for
the taxation years at issue, the Minister relied on the following
assumptions of fact, all of which were admitted by the
appellant:
[TRANSLATION]
(a) on
August 26, 1972, the appellant and Henriette Doyon
("the former spouse") were married;
(b) from their union
was born a daughter, Magalie ("the daughter");
(c) the
appellant's daughter was born on
August 27, 1977;
(d) by means of a
decree nisi signed by the Honourable Judge Robert Lesage of the
Quebec Superior Court on December 5, 1983, and ratifying an
agreement signed by the appellant and the appellant's former
spouse on November 14, 1983, concerning corollary relief and
the liquidation of the matrimonial regime:
(i) the
applicant's former spouse shall have legal custody of the minor
child Magalie;
(ii) the applicant
shall pay his former spouse in advance, on the first day of each
month, at the former spouse's home, support in the amount of
$300 per month for the minor child Magalie;
(e) the
appellant's daughter reached the age of 18 years on
August 27, 1995;
(f) during the
1998 and 1999 taxation years, the appellant's daughter was a
student at Université de Montréal;
(g) for the 1998 and
1999 taxation years, the appellant paid the amounts at issue
directly to his daughter;
(h) the Minister
disallowed amounts of $4,800 and $5,300 claimed by the appellant
as deductions for support for the 1998 and 1999 taxation years
respectively.
[4] The Minister admitted the truth of
the assumptions of fact set out in subparagraph (g) and
acknowledged that the support paid directly to the
appellant's daughter was paid with the consent of the
appellant's former spouse. Apparently these payments began
when the daughter was a student at a CÉGEP in
Montréal and her mother was living in Mont-Louis. At
that time, the daughter was 17½ years old. According to
the appellant, he was given this consent because he did not
always pay the support on time. The December 5, 1983, decree
nisi referred to in subparagraph (d) above was never varied.
The appellant stated that his former spouse always managed the
money from the daughter's loans and scholarships even though
the daughter was studying in Montréal.
[5] The relevant provisions of the
Income Tax Act ("the Act") are found in
sections 56.1, 60 and 60.1. Section 56.1, amended in
1997, applies to amounts paid after 1996. Subsection 56.1(4)
was added in 1997; it sets out the following definitions:
"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 former spouse of the
payer, the recipient and payer are living separate and apart
because of the breakdown of their marriage and the amount is
receivable under an order of a competent tribunal or under a
written agreement; or
(b) the payer is a natural parent of a child of the
recipient and the amount is receivable under an order made by a
competent tribunal in accordance with the laws of a province.
"child support amount" means any support
amount that is not identified in the agreement or order under
which it is receivable as being solely for the support of a
recipient who is a spouse or former spouse of the payer or who is
a parent of a child of whom the payer is a natural parent.
[6] In 1997,
paragraph 60(b) was amended. This paragraph applies
to amounts paid after 1996 and reads as follows:
Section 60: Other Deductions.
There may be deducted in computing a taxpayer's income for
a taxation year such of the following amounts as are
applicable:
...
(b) Support - the total of all amounts each of
which is an amount determined by the formula
A - (B + C)
where
A is the total
of all amounts each of which is a support amount paid after 1996
and before the end of the year by the taxpayer to a particular
person, where the taxpayer and the particular person were living
separate and apart at the time the amount was paid,
B is the
total of all amounts each of which is a child support amount that
became payable by the taxpayer to the particular person under an
agreement or order on or after its commencement day and before
the end of the year in respect of a period that began on or after
its commencement day, and
C is the
total of all amounts each of which is a support amount paid by
the taxpayer to the particular person after 1996 and deductible
in computing the taxpayer's income for a preceding taxation
year;
Subsection 60.1(1) reads as follows:
Section 60.1: Support.
(1) For the purposes of paragraph 60(b) and
subsection 118(5), where an order or agreement, or any
variation thereof, provides for the payment of an amount by a
taxpayer to a person or for the benefit of the person, children
in the person's custody or both the person and those children,
the amount or any part thereof
(a) when payable, is deemed to be payable to and
receivable by that person; and
(b) when paid, is deemed to have been paid to and
received by that person.
[7] The appellant's position is
relatively simple. He considers that he meets the requirements
set out in subsection 60.1(1) of the Act, in that the
December 5, 1983, decree nisi giving custody of the minor
child to his former spouse is still valid. He argued that the
reason his daughter no longer lives with her mother is that the
daughter lives in Montréal in order to pursue her studies.
That is one drawback of living in a rural area. Although no
evidence on this point was adduced at the hearing, the appellant
stated that his daughter never withdrew from her mother's
authority. He concluded by stating that his former spouse
consented to having the support paid directly to the daughter and
that this consent constitutes an agreement.
[8] In the respondent's view,
section 60.1(1) of the Act provides that only an
amount paid by a taxpayer to a person for children in that
person's custody under an order or an agreement is deductible
under paragraph 60(b). It is clear that, under the
Civil code of Québec, when a child reaches the age
of 18 years, the parents' right of custody is
extinguished. In support of her position, the respondent cited
the decision in Curzi v. Canada (Minister of National Revenue
- M.N.R.), [1994] F.C.J. No. 154, itself citing and endorsing
a January 8, 1991, decision by this Court in Guardo v.
Minister of National Revenue (89-1660(IT)). In Curzi,
at paragraphs 13 to 20, Noël J. considered the
concept of "custody" in relation to the concept of
"child of the marriage" as defined in the Divorce
Act as follows:
13. With due respect for the opinion so expressed, I find that
it confuses the right of custody set out in the Divorce Act,
R.S.C. 1985, c. 3 (2nd Supp.), with the concept of
"child of the marriage" which is also set out therein.
First, I note that the section cited by the trial judge as
governing the duration of custody in fact relates to the
definition of the expression "child of the
marriage".
14. That expression is defined in section 2(1) as
follows:
"child of the marriage" means a child of two spouses
or former spouses who, at the material time,
(a) is under the age of sixteen years, or
(b) is sixteen years of age or over and under their charge but
unable, by reason of illness, disability or other cause, to
withdraw from their charge or to obtain the necessaries of
life.
15. The word "garde" is also defined in the same
section, as follows:
"garde" Sont assimilés à la garde le
soin, l'éducation et tout autre élément
qui s'y rattache.
16. The English version of the word "garde" is the
word "custody", which is defined as follows:
"custody" includes care, upbringing and any other
incident of custody.
17. Some aspects of the definition of the expression
"child of the marriage" set out in the Divorce Act
evoke a concept similar to the one contemplated by the support
obligation set out in the Civil Code: a child may be considered
to be under the charge of his or her parents for so long as he or
she cannot provide for his or her own needs, regardless of
age.
18. The concept of "garde" or "custody"
evokes quite another thing. In a divorce, either of the former
spouses may be granted custody of the children. A custody order
confers a right on the parent who is granted custody. It is the
parent who has custody of the children who has ultimate
responsibility for the upbringing [See Note 2 below] of the
children and for exercising parental authority. On the other
hand, a custody order carries with it all of the duties attaching
to custody.
_______________________________________________________
Note 2: I note that the word "éducation" in
the definition of the word "garde" is used in its broad
sense. It is equivalent to the expression "upbringing"
which is used in the English version.
_____________________________________________________
19. However, the right of custody is not perpetual and a
custody order could not be set up against an emancipated adult
child who voluntarily chooses to withdraw from parental
authority. The fact that a child may, in such circumstances,
still be a child of the marriage because, having left the
parental home, he or she cannot provide for his or her own needs
does not mean that the child remains in the custody of the parent
whom he or she has chosen to leave. It is a prerequisite to the
concept of custody that there be parental authority, which cannot
be exercised over an emancipated adult child who chooses to
withdraw from that authority. The trial judge could therefore not
conclude that Stéphane was still in the custody of his
mother solely on the ground that he was in need after leaving his
mother's home or that the custody order made in 1977 had not, at
the time in question, formally been revoked.
20. In my view, the purpose of subsection 60.1(1) is to allow
the deduction of amounts paid for the benefit of a child as long
as the child is still in the custody of the former spouse or the
former spouse remains under the duty of care which attaches to
custody. When a child is emancipated and leaves the custody of
the spouse, the problem addressed by Parliament in allowing the
deduction of amounts paid for the benefit of the child ceases to
exist: from that point on, the former spouse no longer has a duty
of care deriving from his or her right of custody, and the
support can no longer be considered to be owing or paid on
account of that duty.
[9] It is also worth noting a decision
rendered by our Court on the issue of the right to custody,
particularly in light of the provisions of the Civil code of
Québec. In dismissing the appeal in Guardo,
Judge Lamarre Proulx wrote as follows:
The obligation to support relatives in the direct line is set
out in Article 633 of the Civil Code of Québec:
633. Spouses, and relatives in the direct line, owe each other
support.
Proceedings for support are instituted by the holder of
parental authority in the case of a minor child:
634. Proceedings for the support of a minor child may be
instituted by the holder of parental authority, his tutor, or any
person who has custody of him, according to the
circumstances.
The court may order the support payable to the person who has
custody of the child.
In the case at bar, the adult child himself instituted
proceedings against his father. The judgments filed by the
appellant, Exhibits A-1 and A-2 , are in the nature of
support orders, and neither of these judgments indicates that
anyone has custody of the child. Under both the Divorce
Act and the provisions of the Civil Code of
Québec, an adult child may obtain a support order.
The Divorce Act provides that a custody order may be
made. No order was filed. We must therefore refer to the
provisions of the Civil Code of Québec and
determine whether it may be said that the appellant's ex-wife
had custody of his child. It is clear, upon reading the
provisions of the Civil Code, that the right to custody of
the child is extinguished when the child attains the age of
majority, which is fixed at 18 years in Québec, and that
the right to custody can be exercised only with respect to a
minor child.
324. Majority is fixed at the complete age of eighteen years.
At that age persons are capable of performing all civil acts.
In the case of adult children, there are schemes for the
protection of adults, but this is not the situation in this
case.
Article 646 of the Civil Code of Québec reads as
follows:
646.A child remains subject to the authority of his father and
mother until his majority or emancipation.
Article 650 of the Civil Code of Québec reads as
follows:
650. No unemancipated minor may leave the family home without
the consent of the person having parental authority.
An adult child may voluntarily remain in the home of one of
his parents, but they cannot exercise any right of custody,
because such a child may live where he wishes. However, he
retains a right to support if he needs it.
It is clear that under the provisions of the Civil Code
the parents' right of custody is extinguished when their
children reach the age of majority. The appellant's ex-wife
did not have custody of his son Laurent and accordingly the
provisions of subsection 60.1(1) of the Act cannot apply.
[10] In light of the evidence adduced, at
issue in the present case is whether, during the taxation years
at issue, the appellant's former spouse was still obliged to
take care of the child under a custody order; whether the child
was subject to parental authority; and whether the mother had
custody of the child.
[11] In his testimony, the appellant stated
that, even though the child is studying in Montréal and no
longer lives with her mother, the mother still manages the money
from the loans and scholarships for the child. The evidence
showed that during the same period the appellant began to pay the
support provided for in the decree nisi directly to the child,
then aged 17½ years, because he did not always pay the
support to his former spouse on time. How is it possible for the
appellant's former spouse to manage some of the child's
money, while at the same time giving the child responsibility for
collecting the support to which she is entitled under the decree
nisi? The appellant provided no explanation for the fact that the
support paid during the two taxation years at issue was higher
than the amount stated in the December 5, 1983, decree nisi.
The Court concludes that this decree nisi was no longer
applicable during the taxation years at issue. The child had
reached the age of majority, and the appellant's former
spouse gave the daughter responsibility for managing the money
paid by the appellant, thereby withdrawing from her obligation of
care usually associated with a custody order.
[12] Therefore, we have in this case an
intelligent, emancipated young woman who has reached the age of
majority, is studying at university, and is capable of managing
her money. In the Court's view, during the taxation years at
issue, the daughter did not feel subject to her mother's
parental authority. The Court finds that there was no longer a
custody order as such. If the Court now applies the principles
stated in Guardo, that is, that parents' right of
custody is extinguished when a child reaches the age of majority,
the Court finds that during the taxation years at issue, the
appellant's former spouse no longer had the right of custody
with respect to this child.
[13] In Robinson v. Canada, [2000]
T.C.J. No. 477 (Q.L.), Judge Rip expressed his views on the
concept of "custody" at paragraph 16, as
follows:
Custody implies that the child submit himself or herself to
parental control and is dependent to a certain extent. This is a
determination that must be made on the facts and is not
necessarily dependent upon age, although an adult child has a
greater onus than a minor does to prove that he or she is under
the custody of a parent.
[14] According to the evidence adduced, the
amounts paid by the appellant as support during the taxation
years at issue are not deductible because they were not paid for
a child who was in the custody of the former spouse as provided
for in paragraph 60(b) and in section 60.1 of
the Act. The appeals are therefore dismissed.
Signed at Edmundston, New Brunswick, this 14th day of August
2002.
J.T.C.C.
Translation certified true
on this 13th day of November 2003.
Sophie Debbané, Revisor
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