Jean Guilbault v. Minister of National Revenue, [1988] 2 CTC 2323, 88 DTC 1682

Couture, C.J.T.C. [Translation]:—These appeals concern the 1980, 1981, 1983 and 1984 taxation years.

The facts as admitted by both parties may be summarized as follows:

The appellant is the father of an illegitimate child and during the taxation years that are the subject of this appeal he claimed a deduction of $6,000 in computing his income for the 1980 and 1981 taxation years, $11,130 for the 1983 taxation year and $11,625 for the 1984 taxation year.

These amounts represented an allowance paid to the child’s mother to meet the child’s needs under the terms of an agreement, duly signed by the parties, between the appellant and the child’s mother.

In assessing the appellant for the years in question, the respondent disallowed the deductions that had been claimed, relying on the provisions of paragraph 60(c.1) of the Income Tax Act (the Act) on the ground that the amounts in question had not been paid pursuant to an order made by a competent tribunal.

The appellant contends that in his particular circumstances the amounts he claimed as a deduction from his income are deductible by reason of article 594 of the Civil Code of Quebec, which determines the civil status of children regardless of their circumstances of birth.

Article 594 states:

All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth.

At the hearing counsel for the respondent submitted that the Court had no jurisdiction to hear the appeal in relation to the 1981 taxation year since the notice of appeal had been filed outside the limitation period prescribed by the Act. As a matter of fact the assessment for the 1981 taxation year, which served as the minister's notification provided for in subsection 165(3), was dated May 31, 1985 and the notice of appeal was dated August 14, 1986, which is outside the 90-day limit prescribed in section 169 of the Act.

If l clearly understood the appellant's argument with regard to the application of article 594 of the Civil Code of Quebec, it goes as follows:

According to his interpretation of the provisions of the Act applying to a deduction for maintenance payments in the computation of a taxpayer's income, this deduction is allowed in so far as the maintenance payment is paid pursuant to an order or judgment of a competent tribunal. He adds that in the circumstances of his particular situation, it was out of the question that such an order or judgment would exist, since he had not been married to the child’s mother and thus was unable to claim this deduction under these provisions of the Act. That is why he relies on article 594 of the Civil Code of Quebec, which has been in force since 1980 under chapter 39 of the Statutes of Quebec 1980, and which, he argues, prevails over the provisions of the Act.

He informs us that since an illegitimate child has the same rights as a legitimate child under the provisions of article 594, the child is entitled to demand a maintenance payment from its father or mother as the case may be. He adds that in his case, since the maintenance payment he made is not deductible by him and is payable to the child in accordance with the rights conferred on the child by article 594, this indirectly affects the child's maintenance payment.

With regard to the 1984 year, he submits, albeit without reference to a particular section, that the Charter of Rights and Freedoms gives added force to his arguments.

I do not agree with the appellant's proposition concerning the application of the Act and article 594 of the Civil Code of Quebec. As counsel for the respondent pointed out, the child's rights are absolutely irrelevant in the dispute before the Court.

In the first place, he tells us that the payment he made during the years in question was made to a person other than the child, that is, the mother, in accordance with agreements written and signed by the parties in 1979 and 1983. He correctly argues that the provisions of the Act allowing the deduc- tion of an alimony or maintenance payment in computing a taxpayer's income are paragraphs 60(b), 60(c) and 60(c.1) and only in accordance with the conditions specifically prescribed.

Subsections (b) and (c) presuppose the existence of a marriage at some time between the taxpayer and the beneficiary of the alimony or maintenance payment, a situation that never existed between the appellant and the child's mother. In contrast, paragraph 60(c.1) does not impose this condition, but it does require that the payment be payable pursuant to an order made by a competent tribunal in accordance with the laws of a province. Since we are concerned here with a deduction claimed by the appellant, and therefore an exception to the Act, the authorities hold that he must meet all of the conditions provided for in the legislation and that the legislation must be narrowly construed.

Furthermore, with respect to the appellant's contentions that the child’s rights are frustrated if he is unable to deduct the maintenance payment, the application of the Act as a whole demonstrates the complete opposite. Since the Court is of the view that the amounts paid by the appellant to meet the needs of his child do not constitute an alimony or maintenance payment or allowance payable on a periodic basis within the meaning of the Act, the amounts in question are not taxable in the hands of the beneficiary, the mother, and accordingly the amount available to meet the needs of the child is correspondingly increased, thus giving an advantage to the child rather than causing it financial prejudice as contended by the appellant.

For these reasons the Court did not have jurisdiction to hear the appeal in relation to the 1981 taxation year. The appeals for the 1980, 1983 and 1984 taxation years are dismissed.

Appeals dismissed.