|
Citation: 2003TCC671
|
|
Date: 20030915
|
|
Docket: 2003-1585(IT)I
|
|
BETWEEN:
|
|
GORDON J. LEIDAL,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Bowman, A.C.J.
[1] The Appellant claims a disability
tax credit in respect of Robert McDonald for his 2001 taxation
year.
[2] Robert McDonald was seriously
injured in 1999 and has been unable to resume work. He was
severely disabled in 2001 and has obtained a Form 2201, a
Disability Tax Credit Certificate signed by a medical doctor.
Unquestionably Robert McDonald would be entitled to the
disability tax credit under sections 118.3 and 118.4.
[3] The Appellant and his wife have,
since the accident in 1999, fully supported Mr. McDonald. They
pay his rent, buy his food and provide him with any other support
he needs. They are to be commended for their compassion and
social responsibility. Mr. McDonald is wholly dependent upon
them.
[4] Mr. McDonald is an adult. He has
never been legally adopted by the Appellant, his wife or the
parents of either the Appellant or his wife. He lives in a
separate residence on which the Appellant pays rent.
[5] Subsection 118.3(2) provides in
somewhat abstruse language that a dependent can transfer to his
or her supporting person the disability tax credit to which the
dependent would otherwise be entitled. The question is whether
Robert McDonald was a "dependent" of the Appellant. He
is not related by blood or marriage to him. Dependent is defined
in subsection 118(6) as follows:
(6) For the purposes
of paragraphs (d) and (e) of the description of B in subsection
(1) and paragraph (4)(e), "dependent" 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 it
(a) the child or
grandchild of the individual or of the individual's spouse or
common-law partner; or
(b) the parent,
grandparent, brother, sister, uncle, aunt, niece or nephew, if
resident in Canada at any time in the year, of the individual or
of the individual's spouse or common-law partner.
[6] Mr. Leidal contends that what he
is doing for Mr. McDonald goes beyond friendship and establishes
that Mr. McDonald is Mr. Leidal's "adopted brother
by-fact". He points to the fact that both the Income Tax
Act (ss 251.4) as well as the General Income Tax and Benefit
Guide at line 305 recognize adoption whether it be legal or in
fact. He says there is no reason if there can be adoption in fact
of a child there cannot be adoption in fact of a brother.
[7] Despite the conviction and
sincerity with which Mr. Leidal presented his argument, I cannot
accept it.
[8] In law there is no such thing as
adopting a brother. One can adopt a child in fact but one cannot
adopt an adult as a brother or sister.
[9] The question of adoption in fact
was fully and learnedly discussed by Christie, A.C.J. of this
Court in Madigane v. M.N.R., [1989] 1 C.T.C. 2103. There
is a considerable body of jurisprudence on de facto
adoption of a child by a person. For example, Christie, A.C.J.
quotes Mr. Justice Angers in Anderson v. M.N.R., [1947]
C.T.C. 223 who held that there had been a bona fide de
facto adoption. Christie, A.C.J. said:
At page 1033 Mr. Justice Angers said:
Does the word "adoption", inserted in paragraph (f)
of subsection 1 of section 2 of the Income War Tax Act by
16-17 George V, chap. 10, and constantly kept in the numerous
statutes which followed, apply only to adoptions made in
compliance with the requirements of an adoption Act of one of the
provinces or does it include a bona fide de facto
adoption? This is the question arising for solution.
He held that it included a bona fide de facto adoption.
He said at pages 1039-40:
If we take the word "adoption" in its popular sense
it means the act by which a person adopts as his own the child of
another or, in other terms, the acceptance by a person of a child
of other parents to be the same as his own child.
This is precisely what the appellant has done with regard to
Beverley Price and Helen Price, minor children of Charles Price
and Margaret Grace Price, with the latter's consent and, as
the evidence discloses, to their relief and entire satisfaction.
Beverley was then seven years old and Helen four. ...
[10] Similarly, he referred to Racine and
Racine v. Woods, [1983] 2 S.C.R. 173. Christie, A.C.J. in
commenting on this case said at paragraphs 11 and 12:
This case also involved a custody dispute between the mother
and a married couple who had been given possession of the child
who was the subject of the controversy. The child was born on 4
September 1976 and, except for a few months after birth and a
brief period in May 1978, the child was with the Racines in their
home where she was treated as if she were their own and became an
established part of the family. Wilson J. delivered the judgment
of the Court and, as happened in Agar, she treated these facts as
speaking for themselves in concluding that there had been a de
facto adoption. At page 185 she said:
In giving the court power to dispense with the consent of the
parent on a de facto adoption the legislature has
recognized an aspect of the human condition--that our own self
interest sometimes clouds our perception of what is best for
those for whom we are responsible. It takes a very high degree of
selflessness and maturity--for most of us probably an
unattainable degree--for a parent to acknowledge that it might be
better for his or her child to be brought up by someone else. The
legislature in its wisdom has protected the child against this
human frailty in a case where others have stepped into the breach
and provided a happy and secure home for the child for a minimum
period of three consecutive years. In effect, these persons have
assumed the obligations of the natural parents and taken their
place. The natural parents' consent in these circumstances is
no longer required.
Regardless of the nationality of an individual or his place of
residence during a taxation year the question of whether he has
been adopted in fact within the meaning of paragraph 251(6) (c)
of the Act is to be determined in accordance with Canadian legal
criteria. In my opinion the authorities cited clearly show that
these basic features are common to the de facto adoptive
parent-child relationship. They live in close proximity to each
other. In each of these cases the facts are that the child and
the adoptive parent or parents were residing under the same roof
and the child was under the actual control and custody of the
parents who were in a position to exercise effective parental
care and guidance on a continuing basis. The adoptive parents and
child constituted a family unit or part of such a unit that was
presided over by the parents. ...
[11] Even if Mr. Leidal were contending that
he had adopted Mr. McDonald as a son (and I have a great deal of
difficulty with the notion that one can adopt an adult as a son,
either legally or de facto) I doubt that the relationship
here would meet the criteria enumerated by Christie, A.C.J.. Here
it is contended that Mr. McDonald is a de facto adopted brother.
This is not in my view legally possible. Regardless of the
sympathy I feel for Mr. Leidal and my admiration for his
generosity and compassion I am unable to allow his appeal.
The appeal is dismissed.
Signed at Toronto, Ontario this 15th day of September,
2003.
A.C.J.
Email this Content