Slade v. The Queen, 2005 TCC 641 (Informal Procedure)

REASONS FOR JUDGMENT

(Delivered orally from the Bench at

Whitehorse, Yukon Territory, on September 12, 2005)

(Edited as to style and syntax)

Bowman, A.C.J.

[1]       This is an appeal from an assessment for the 2003 taxation year. The appellant claimed the tax credit under paragraph 118(1)(b) of the Income Tax Act. However, he and his ex-wife, pursuant to a number of court orders that began in 1999 and continued on until present, shared custody of their daughter in the sense that she lives with the wife during the school year?

MR. SLADE: Alternating years, my daughter has been with me for two full school years.

JUSTICE: Alternating years. In some cases the child is with the wife during the school year and in some cases she is with the husband.

[2]       The result seems to be that neither parent is entitled to claim the credit under paragraph 118(1)(b). Mr. Slade points out, and I think with some justification, that there is unfairness here. Subsection 118(5) of the Income Tax Act prohibits deduction of a credit under subsection 118(1):

"..where the individual is required to pay a support amount (within the meaning assigned by subsection 56.1(4)) to the individual's spouse or common-law partner or former spouse or common-law partner in respect of the person..."

The person being the child

[3]       The law is quite clear, therefore, that he is not entitled to a credit under subsection 118(1).

[4]       As I mentioned to Mr. Slade there may be some unfairness in this conclusion, but there is nothing I can do about it. That is a matter for Parliament. I would suggest perhaps he do one of two things or both. One: get in touch with his Member of Parliament to suggest changing the law; and two, if he could go back to his former spouse and perhaps they could sit down with the assistance of their lawyers and work something out that achieves a more favorable and equitable tax result.

[5]       It is not something that is within my jurisdiction, but I do think perhaps something ought to be done about it.

[6]       Under the circumstances I must dismiss the appeal.

Signed at Ottawa, Canada, this 3^rd day of October 2005.

Bowman, C.J.