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Citation: 2003TCC297
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Date: 20030506
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Docket: 2002-4617(IT)I
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BETWEEN:
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DONALD E. BORDEN,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Edmonton, Alberta, on April 10, 2003)
Miller J.
[1] Mr. Donald Borden appeals by way
of the informal procedure the assessment of his 2001 taxation
year by the Minister of the National Revenue (the Minister), in
which Mr. Borden claimed his adult son as a dependent. The
Minister denied Mr. Borden the dependent credit under paragraph
118(1)(d) of the Income Tax Act (the
Act).
[2] Mr. Borden's son Glen was 29
years old in 2001. Two years earlier he was showing signs of some
instability. Mr. Borden suggested this problem was brewing over a
long period of time. It surfaced in 1999 with a marked change in
Glen's personality. He felt people were after him. His
parents had to call in a crisis team. In August 1999, he was
taken to the Royal Alexandra Hospital and then transferred to the
University of Alberta Hospital where he was seen by
psychiatrists. The following is a report of Dr. B. Sowa, Clinical
Professor, respecting such hospital stay.[1]
I have reviewed Glen's hospital chart. He was, indeed,
admitted to the hospital from September 4-10, 1999, under my
care.
Diagnosis:
Paranoid Psychosis ?steroid
induced
In reviewing my notes, his presentation was also suggestive of
schizophrenia. I have not seen Glen since that time and therefore
cannot comment further on his illness or current mental state -
from your description he seems to be still very ill.
[3] Dr. Sowa was questioning the
possibility of the behaviour being steroid induced. Mr. Borden
acknowledged that his son worked out a lot and had started taking
steroids.
[4] Shortly after this hospital stay,
Glen went to his sister's and threatened to kill her friend.
He then left town heading for Eastern Canada. His family has not
seen him since. Before he left he had been taking some medication
which Mr. Borden thought helped, but Glen complained it made
him do things he did not want to do. The contact over the last
years, including 2001, has been by daily calls. Glen had a car
when he moved from Canada to the U.S., traveling from one side of
the country to the other and back again. As far as Mr. Borden
knows his son has never worked.
[5] Mr. Borden has provided Glen with
$50,000 over three years, as well as sending clothes, paying gas
bills, phone bills, basically supporting him. Mr. Borden
stated, "I was giving him money to keep him alive".
When Glen calls, if Mr. Borden suggests no more support can
be provided, threats are made. Mr. Borden has had
considerable contact with his son, and he feels his son's
condition is worsening. Though not a physician, Mr. Borden
believes his son has schizophrenia. He does not believe his son
has worked since leaving Canada; he would be incapable of doing
so. The Bordens can keep track of Glen's whereabouts by the
phone calls, bank records and credit card records. Mr. Borden had
no medical evidence from 2001.
[6] The Respondent's argument was
two-fold. First, there is insufficient evidence to prove Glen
suffered any mental infirmity. Second, even if there was an
infirmity, it has not been proven the dependency was because of
the infirmity.
[7] On the first issue, the Respondent
relies on Dr. Sowa's report which suggests a diagnosis of
paranoid psychosis was steroid induced, and therefore temporary.
There is no further medical evidence to confirm one way or the
other. Further, if medication did help, presumably the infirmity
could be controlled.
[8] On the second issue, it was clear
the son could get around by himself. The Crown acknowledged a
dependency, but the fact that the son functioned for three years
without returning home suggests the dependency is not as a result
of the infirmity.
[9] The sections in issue are
paragraph 118(1)(d) and subsection 118(6). They are not
that long, so I will quote them:
118(1)(d)
For each dependent of the individual for the year who
(i) attained
the age of 18 years before the end of the year, and
(ii) was dependent
on the individual because of mental or physical infirmity,
the amount determined by...
And they give a certain formula. Subsection 118(6) reads:
For the purposes of paragraph (d) ... of the
description of (B) in subsection (1) ... "dependant" of
an individual for a taxation year means a person who at any time
in the year is dependent on the individual for support, and
is
(a) the child
or grandchild of the individual...
I need not read the rest.
[10] The issue is whether in 2001, Glen
Borden was mentally infirm. I agree there is not much evidence of
his condition in 2001, simply due to the circumstances. What we
do have is a diagnosis of paranoid psychosis, maybe steroid
induced, as well as a comment suggesting schizophrenia. Then we
have Mr. Borden, the father's evidence that his perception
over the years is that whatever disturbance his son is suffering,
it is getting worse.
[11] The term "infirmity" was
reviewed by Judge Hershfield in the Mahoney v. R.[2] case. The
starting point is that medical evidence is not a requirement for
a finding of infirmity. Judge Hershfield indicated at paragraph
33:
... The Act does not say that it would be unreasonable
to request or provide medical evidence as to a dependant's
general state of health. Nor does it suggest that medical
evidence would not assist the taxpayer in establishing the state
of health or vitality of the alleged dependent. On the
other hand, that the "required" evidentiary bar of the
subject provision is relatively low, when contrasted to other
health related provisions in the Act might be kept in mind
in giving a contextual meaning to the word
"infirmity".
Also, it is unnecessary to explore the reason for the
infirmity. Again, as Judge Hershfield indicated:
... I return to my earlier comments that the Act, in
using the term does not require that we know the cause of the
condition. While I appreciate that the Respondent wants to know
what caused the infirmity in order to better distinguish valid
claims from those that might be viewed with suspicion, the
Act imposes no such requirement.[3]
[12] Judge Hershfield concludes that
infirmity is abnormally poor health or deteriorated vitality, and
goes on to say:[4]
In Tomlinson v. Prudential Insurance Co. of America, an
insurance law case, Laidlaw J.A., of the Ontario Court of
Appeal, held that:
... the word infirmity must be taken in its ordinary sense to
mean physical weakness, debility, frailty or feebleness of body
resulting from constitutional defect.
The reason that I am attracted to this definition is its
reference to constitutional defect. A person's
"constitution", physical and mental, is lay parlance
for the whole of a person's health and vitality. It is the
indefinable source of strength the diminishment of which does not
beg to be explained by a diagnosable medical condition.
[13] This case is a close call, because of
the lack of evidence in determining whether Glen's mental
state constituted such abnormally poor health or constitutional
weakness as to be infirm. On balance, I find it does. Mr.
Borden's assessment is supported by some medical diagnosis,
though clearly not as timely as would have been preferable. But
threats to kill, fears of others, threats to family, do not
represent normal mental health. I find they are sufficient to
find Glen has an infirmity.
[14] Was the dependency because of this
infirmity? Firstly, the Respondent does not argue that there has
not been a dependency. She acknowledges there was a dependency
and I agree. Mr. Borden summed it up well that he provided money,
clothes and other support to his son so his son could live. This
seems totally in accord with the definition of dependent for
support given by Justice Marceau in the Canada v.
Robichaud[5] case; the support was a source of
subsistence, sustenance or living.
[15] But was Glen dependent because of the
infirmity? If not because of the infirmity, why else? Was he
simply a ne'er-do-well heading down the wrong track? On
balance, I find there is more evidence to support a finding he
was dependent because of his mental infirmity. There is no
evidence of Glen's background or comments in his steady
stream of calls to suggest a normal offspring simply playing his
parents. Though Mr. Borden indicated he considered cutting Glen
off, he never wavered from his position that Glen's condition
was the root of this most unfortunate situation in which the
family found itself.
[16] This is a difficult case since it is a
borderline case and because of lack of evidence. I do, however,
slip over the border, but just, in your favour, and I will allow
the appeal.
Signed at Ottawa, Canada, this 6th day of May, 2003.
J.T.C.C.
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