Docket:
2009-905(IT)I
BETWEEN:
CLAUDE
PINEAU,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
[OFFICIAL
ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard
on September 4, 2009, at Montréal, Quebec.
Before: The
Honourable Justice Réal Favreau
Appearances:
|
For the Appellant:
|
The Appellant himself
|
|
Counsel for
the Respondent:
|
Laurent
Brisebois
|
____________________________________________________________________
JUDGMENT
The appeal from
the reassessment made November 18, 2008 pursuant to which the Minister of
National Revenue disallowed, in the calculation of the Appellant’s
non-refundable tax credits for the 2007 taxation year, credits for an eligible
dependant and for children born in 1990 or later, is dismissed without costs.
Signed
at Montréal, Quebec, this 30th
day of October 2009.
“Réal
Favreau”
Translation
certified true
on
this 21st day of December 2009.
Bella Lewkowicz, Translator
Citation: 2009 TCC 559
Date: 20091030
Docket:
2009-905(IT)I
BETWEEN:
CLAUDE PINEAU,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL
ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
The
Appellant is appealing from a reassessment made November 18, 2008 pursuant to
which the Minister of National Revenue (the Minister) disallowed, in the
calculation of the Appellant’s non-refundable tax credits for the 2007
taxations year, credits for an eligible dependant in the amount of $1,440 and
for children born in 1990 or later in the amount of $300, with respect to his
daughter, Ariane.
[2]
The
underlying facts of this case are simple and are described in subparagraphs a),
b) and c) of paragraph 6 of the Reply to the Notice of Appeal as follows:
[TRANSLATION]
a) the
Appellant and Ms. Nathalie Pepin lived together as common-law partners for
around ten years and the cessation of the common-law partnership occurred on or
around June 16, 2005;
b) the
Appellant and Ms. Nathalie Pepin are parents to two minor girls;
c) in
February 2007, with the consent to judgment on the application’s motion for
child custody, determination of support payments and settlement of financial
interests, the following clauses, among others, were ratified:
i) after
serious reflection and discussions, the parents have come to the conclusion
that they will share custody of their two daughters,
ii) Mr.
Pineau will pay Ms. Pepin, for the exclusive benefit of their two minor
children, $61.59 per month in support payments, that is, a total of $793.07 per
year,
iii) the
aforementioned support payment will be indexed on January 1 of each year, in
accordance with the index provided for in by the Civil Code of Québec.
[3]
The
issue stems from the fact that subsection 118(5) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.), as amended (Act), stipulates that an individual
may not claim a personal tax credit when living separate and apart from his or
her former spouse or partner and must make support payments to the former
spouse or partner on behalf of a child. Subsection 118(5) of the Act reads as
follows:
No amount may
be deducted under subsection (1) in computing an individual’s tax payable under
this Part for a taxation year in respect of a person where the individual is
required to pay a support amount (within the meaning assigned by subsection
56.1(4)) to the individual’s spouse or common-law partner or former spouse or
common-law partner in respect of the person and the individual
a) lives
separate and apart from the spouse or common-law partner or former spouse or
common-law partner throughout the year because of the breakdown of their
marriage or common-law partnership; or
b) claims
a deduction for the year because of section 60 in respect of a support amount
paid to the spouse or common-law partner or former spouse or common-law
partner.
[4]
Following
the consent to judgment on the applicant’s motion for child custody,
determination of support payments and settlement of financial interests
concluded February 9, 2007, each parent deducts one dependent child. Credits
totalling $1,740 were disallowed as the Appellant was paying support payments
of $30.79 per month, that is $364.48 per year, for his daughter, Ariane.
[5]
The
Appellant considers subsection 118(5) of the Act to be discriminatory and
penalizing and should be amended because it infringes on the convention on the
rights of the child adopted by the United Nations General Assembly.
[6]
In
my opinion, subsection 118(5) of the Act is clear and not vague. The
conditions of application have all been met. The Appellant therefore cannot
succeed based on this provision.
[7]
With
respect to the reference to the convention on the rights of the child, it must
be mentioned that legally, this convention is not directly applied in Canada. Moreover,
the argument regarding the Charter of Rights and Freedoms that was
raised at the hearing was not raised in the Notice of Appeal and must therefore
be rejected.
[8]
The
Court has no jurisdiction to make judgements in equity. It is bound to apply
the Act, as adopted by Parliament.
[9]
As
such, the appeal is dismissed without costs.
[10]
With
respect to fairness, it would be desirable if Parliament amended the Act so
that the reduction in personal credits be limited to support the amount of
payments made to the former spouse with respect to his or her or their
children.
Signed
at Montréal,
Quebec,
this 30th day of October 2009.
“Réal Favreau”
Translation
certified true
on
this 21st day of December 2009.
Bella Lewkowicz, Translator
CITATION:
2009 TCC 559
COURT
FILE NO.: 2009-905(IT)I
STYLE OF
CAUSE: Claude Pineau and Her Majesty
the Queen
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: September 4, 2009
REASONS
FOR JUDGMENT BY: The Honourable Justice Réal Favreau
DATE
OF JUDGMENT: October 30, 2009
APPEARANCES:
|
For
the Appellant:
|
The Appellant himself
|
|
Counsel for the
Respondent:
|
Laurent
Brisebois
|
COUNSEL
OF RECORD:
For
the Appellant:
Name:
Firm:
For
the Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
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