Docket: 2016-5106(IT)I
BETWEEN:
STÉPHANE
HUNEAULT,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent.
EDITED VERSION OF TRANSCRIPT
OF ORAL REASONS FOR JUDGMENT
Let the attached edited transcript of the reasons for judgment
rendered orally at the hearing on March 29, 2017 at Ottawa, Ontario be
filed. I have edited the transcript (certified by the Court Reporter) for
style, clarity and to make minor corrections only. I did not make any
substantive changes.
Signed at Ottawa, Ontario, this 28th day of
April 2017.
“Patrick Boyle”
REASONS FOR JUDGMENT
(Appeal
heard and decision rendered orally at the hearing on
March 29, 2017, at Ottawa, Ontario)
Boyle J.
[1]
The issue in this morning’s informal appeal
involves the circumstances in which shared custody parents are entitled to or
disentitled from treating a child as an eligible dependant. This engages
subsections 118(5) and (5.1) of the Income Tax Act. These issues and
provisions have been considered by this Court on numerous occasions and by the
Federal Court of Appeal in its 2013 decision in Verones v. Canada, 2013
FCA 69.
[2]
I have decided I must dismiss
Mr. Huneault’s appeal because I’m satisfied that under the terms of the
applicable amended separation agreement, Mr. Huneault is the only parent
obligated to pay child support.
[3]
I am unable to construe this clear — albeit
arguably imperfect — agreement, as imposing any obligation on Ms. Plouffe
to pay child support to Mr. Huneault. This is no different in the 2011
amended agreement than in the original 2008 agreement.
[4]
In the agreement I would note the following:
[5]
First, the 2011 amendments were drafted by
Mr. Huneault’s lawyer, the child support language does not change in any
material way even though there is now shared custody beginning in 2011.
[6]
Secondly, the calculations used by the two
parents to compute Mr. Huneault’s obligation each year did not change
following the amendments.
[7]
Thirdly, Mr. Huneault’s obligation is
clearly set out in the agreements between the parents. There is not a hint of
any obligation in the agreements themselves for Ms. Plouffe to pay child
support to Mr. Huneault. Indeed, the definition of termination event
applicable to his obligation is not even triggered if Ms. Plouffe starts
earning more than Mr. Huneault.
[8]
Fourthly, I do not see the separate provision of
the 2011 amendments that specifies each parent will be entitled to claim one of
the two children as a dependant for tax purposes as creating an ambiguity, much
less resolving one. This is at best evidence of an intention to do what it
takes to qualify for each parent claiming a dependant; it is not evidence that
they did what is necessary. It evidences a lack of knowledge of the requirement
for mutual obligations, which is not surprising. It cannot create the missing
obligation.
[9]
Fifthly, I’m unable to construe Ms. Plouffe’s
reimbursement of any excess payment by Mr. Huneault in those years where
the April calculation resulted in an overpayment for the first three months of
the calendar year as anything other than Ms. Plouffe was reimbursing him
for his excess child support payments in January, February and March; she was
not paying him child support.
[10]
In short, this decision is then driven by the
Federal Court of Appeal decision in Verones on the netting of amounts to
be contributed under child support guidelines not being able to help a parent
if that parent is the only parent obligated under the agreement to actually pay
child support. That is how the provision of the statute reads and how the
Federal Court of Appeal and this Court have interpreted it.
[11]
While I’m not unsympathetic to complaints that
this may not make sense or advance any underlying policy, I’m a judge of the
Tax Court, I can’t rewrite the law, I can’t rewrite the agreement, and I can’t
interpret the law differently than the Federal Court of Appeal.
[12]
Those are my reasons for having to dismiss the
appeal this morning.
Signed at Ottawa, Ontario, this 28th day of
April 2017.
“Patrick Boyle”
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