Szuch v. Canada, 2006 FCA 383

Date: 20061122

Docket: A-54-05

Citation: 2006 FCA 383

 

CORAM:       LÉTOURNEAU J.A.

                        PELLETIER J.A.

                        MALONE J.A.

 

BETWEEN:

JOSEPH MICHAEL SZUCH

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

 

 

 

 

 

 

 

Heard at Saskatoon, Saskatchewan, on November 22, 2006.

Judgment delivered from the Bench at Saskatoon, Saskatchewan, on November 22, 2006.

 

 

 

REASONS FOR JUDGMENT OF THE COURT BY:                                      MALONE, J.A.

 

Date: 20061122

Docket: A-54-05

Citation: 2006 FCA 383

 

CORAM:       LÉTOURNEAU J.A.

                        PELLETIER J.A.

                        MALONE J.A.

 

BETWEEN:

JOSEPH MICHAEL SZUCH

Appellant

and

HER MAJESTY THE QUEEN

Respondent

 

 

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Saskatoon, Saskatchewan, on November 22, 2006)

 

MALONE J.A.

 

[1]               The appellant appeals from a judgment of a Judge of the Tax Court of Canada dated January 21, 2005.  The Tax Court Judge found, based on the evidence, that Mr. Szuch was required to pay child support for his two children in 2002 by virtue of a court order.  He also determined that he was not entitled to claim a dependant credit for either child pursuant to paragraph 118(1)(b) of the Income Tax Act (‘The Act’).

[2]               Mr. Szuch now says that the court order was out of date and that the Judge misinterpreted paragraph 118(1)(b) of the Act.

[3]               Regrettably, we are unable to agree with either submission.

[4]               An interim court order dated May 18, 2001 entered into evidence clearly required Mr. Szuch to pay child support for both children unless varied by the court.  There is no evidence that the interim order was subsequently varied.  Accordingly we are unable to conclude that the Judge misapprehended the evidence or made any palpable and overriding error in assessing the facts.

[5]               In our analysis, the Judge correctly concluded that the effect of subsection 118(5) was to disentitle the appellant to a deduction under subsection 118(1).  In the present case, the Judge correctly determined that Mr. Szuch was required to pay a support amount while living separate and apart from his former spouse because of marriage breakdown.   No other conclusion is possible on this record.

[6]               Accordingly, the appeal for the 2002 taxation year will be dismissed but without costs.

 

“B. Malone”

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                                                              A-54-05

 

(APPEAL FROM A JUDGMENT OF THE TAX COURT OF CANADA DATED JANUARY 21, 2005, DOCKET NO. 2004-3637(IT)I))

 

STYLE OF CAUSE:                                                              JOSEPH MICHAEL SZUCH v.

                                                                                                HER MAJESTY THE QUEEN

 

 

PLACE OF HEARING:                                                        SASKATOON, SK

 

 

DATE OF HEARING:                                                          NOVEMBER 22, 2006

 

 

REASONS FOR JUDGMENT OF THE COURT BY:       LÉTOURNEAU, J.A.

                                                                                                PELLETIER, J.A.

                                                                                                MALONE, J.A.

 

DELIVERED FROM THE BENCH BY:                            MALONE, J.A.

 

 

APPEARANCES:

 

Mr. Joseph Michael Szuch	ON HIS OWN BEHALF
Ms. Brooke Sittler	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

(not applicable)	FOR THE APPELLANT
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON	FOR THE RESPONDENT