William Mair v. Minister of National Revenue, [1979] CTC 3160, 79 DTC 930

John B Goetz:—The appellant, William Mair, claimed for the taxation year 1976 a deduction under paragraph 109(e) of the Income Tax Act in respect of his niece claiming that his niece was wholly-dependent upon him for support during the period of her residence in Canada. The respondent, in assessing the appellant, relied, inter alia, upon paragraphs 109(1)(d) and (e) and subsection 252(1) of the Income Tax Act, SC 1970-71-72, c 63, as amended.

The facts of this case are quite simple. The appellant’s niece, age 16 years, came to live with him in Canada, on June 30, 1975, because she was unable to get along with her parents. The niece’s parents were living together in Scotland. The niece enrolled in school in Grade XIII and was fed and clothed by her uncle who acted in loco parentis to her. The niece’s visit to Canada was arranged with her parents. The father could have brought her home at Christmas time but did not. The niece could have gone home of her own volition but did not.

The relevant sections of the Income Tax Act to be considered here are paragraphs 109(1 )(d) and (e) and subsection 252(1) which read as follows:

(1) For the purpose of computing the taxable income of an individual for a taxation year, there may be deducted from his income for the year such of the following amounts as are applicable:

(d) for each child or grandchild of the individual who, during the year, was wholly dependent upon him for support and was

(i) under 21 years of age,

(ii) 21 years of age or over and dependent by reason of mental or physical infirmity, or

(iii) 21 years of age or over and in full-time attendance at a school or university,

(e) for each niece or nephew of the individual or his spouse, who, during the year, resided in Canada, was wholly dependent upon the individual for support and was a person described in subparagraph (d)(i), (ii) or (iii), if, during the year,

(i) the mother of the niece or nephew, as the case may be, was living apart from, and was separated pursuant to a divorce, judicial separation or written separation agreement from, her husband or former husband and was not in receipt of any amount as alimony or other allowance payable on a periodic basis for the maintenance of the niece or nephew,

(ii) the father of the niece or nephew, as the case may be, was physically or mentally infirm, or

(iii) the father of the niece or nephew, as the case may be, was deceased and the mother was not remarried.

an amount equal to,

(iv) if the niece or nephew has not attained the age of 16 years before the end of the year, $300 less Zz of the amount, if any, by which the income for the year of the niece or nephew, as the case may be, exceeds $1,100, and

(v) in any other case, $550 less the amount, if any, by which the income for the

year of the niece or nephew, as the case may be, exceeds $1,150;

From the evidence before me I find that the appellant’s niece was under the age of 21 years; that during the relevant year she resided in Canada; and that she was wholly-dependent upon the appellant for support. The evidence is quite clear that the niece’s mother was not living apart from, or separated pursuant to a divorce, judicial separation or written separation agreement from, her husband and she was not in receipt of any amount as alimony or other allowance payable on a periodic basis for the maintenance of the niece. Furthermore, there was no evidence as to whether the father of the niece was physically or mentally infirm. The actions of the uncle in having concern and acting as a parent to the niece were certainly commendable conduct on his part but unfortunately I am bound by the strict provisions of the Income Tax Act and it would appear therefore that the appellant does not come fully under paragraph 109(1)(e) of the Act in that subparagraphs (i) and (ii) thereof are not met by the evidence before me.

For the above reasons, the appeal is dismissed.

Appeal dismissed.