[OFFICIAL ENGLISH TRANSLATION]
Date: 20020114
Docket: 2000-1994(IT)I
BETWEEN:
ANDRÉ VILLENEUVE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal for the 1997 and
1998 taxation years.
[2] The point for determination is
whether the amounts of $6,032 for 1997 and $12,237 for 1998 were
allowable as support or other allowance payable on a periodic
basis with respect to the said taxation years.
[3] In making and confirming the
reassessments dated respectively July 26 and
October 12, 1999, the respondent made the following
assumptions of fact:
[TRANSLATION]
(a) the appellant
and Martine Nadeau (hereinafter the "former spouse") were
divorced on January 19, 1993;
(b) the appellant
and his former spouse are the parents of Audrey, born on
September 22, 1982, (hereinafter the "child");
(c) an agreement on
corollary relief was amended by judgment signed by the Honourable
Judge Gérald Boisvert of the Superior Court of Quebec
on July 7, 1997;
(d) that judgment
amended the agreement on corollary relief confirmed by the
judgment of January 19, 1993;
(e) the payments
totalling $6,032 in 1997 and $12,237 in 1998 made by the
appellant for the needs of his child do not qualify as
support;
(f)
consequently, the Minister disallowed the appellant the
respective amounts of $6,032 for the 1997 taxation year and
$12,237 for the 1998 taxation year claimed by him in respect of
support or other allowance payable on a periodic basis.
[4] After being sworn, the appellant
admitted all the facts assumed by the respondent.
[5] The parties agreed to file the
relevant documentary evidence as Exhibit I-1.
[6] The highly material judgment is
the one the Honourable Gérald Boisvert of the
Superior Court of Quebec rendered on July 7, 1997.
[7] The relevant excerpt from
Judge Boisvert's judgment should be reproduced in full:
[TRANSLATION]
. . .
The applicant proved with supporting evidence that she had spent
$12,659.82 to meet the needs of Audrey provided for in
paragraph 14 of the agreement on corollary relief; the
respondent thus owes her the sum of $6,329.91. To that amount
must be added the two cheques for $162.75 each being the object
of stop payments, with the result that the applicant's claim
amounts to $6,655.41.
The Court notes that, since these expenses are, inter
alia, expenses relating to activities previously provided for
in paragraph 14, the applicant did not have to come to a
prior agreement with the respondent. She claims nothing in
respect of Audrey's travel.
As a result of the respondent's refusal to contribute to the
specific needs of the child until he is able to exercise his
access rights, it must be decided whether, in future, all the
child's needs will be included in the support based on the
parties' reciprocal ability to pay and the new provisions in
effect since May 1.
The Court fixes the child's needs at $264 a week, from which must
be deducted family allowances of $10.46, as a result of which her
net needs are $253.54.
The applicant had income of $57,631.25 in 1996, but she received
27 pay cheques; her income that year will be greater than
$54,000, excluding the interest produced by an RRSP, the
principal of which is $58,240.
The respondent had income of $57,571 in 1996; he will incur a
salary reduction of 4.2% in that year and will receive less in
overtime because he chose to be remunerated half in time and half
in salary and had worked only 25 hours of overtime at the
time of the hearing. It is the Court's view that his income will
be at least $47,000.
He fixes his monthly needs at $2,706.79 without provision for
income taxes. In the Court's view, they are in the order of
$2,300 instead.
The support payable by the respondent will thus be $510 a
month.
BY THESE REASONS, THE COURT:
DISMISSES the respondent's motion;
ALLOWS the applicant's motion in part;
ORDERS the respondent to pay the applicant the sum of
$6,655.41 with interest and the additional indemnity on the
amount of $4,470.24 between February 16, 1996, and
June 11, 1997, and on the amount of $6,644.41 starting on
June 12, 1997;
AMENDS the agreement on corollary relief confirmed by the
judgment of January 19, 1997;
DECLARES that, in future, the share of all the needs of
the child Audrey to be assumed by the respondent shall be payable
out of the support;
ORDERS the respondent to pay the applicant support of $510 a
month payable in accordance with the provisions of the Act to
facilitate the payment of support;
THE WHOLE with costs against the respondent on the two
motions.
. . .
[8] In view of the facts and text of
the judgment rendered, there is no doubt that the amounts of
$6,032 for 1997 and $12,237 for 1998 were not allowable as
support or other allowance payable on a periodic basis under
sections 3, 56, 56.1, 60, 60.1 and 248 of the Income Tax
Act in their respective versions applicable to the instant
case.
[9] For all these reasons, the appeal
is dismissed.
Signed at Ottawa, Canada, this 14th day of January 2002.
J.T.C.C.
Translation certified true
on this 31tst day of March 2003.
Sophie Debbané, Revisor
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