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Docket: 2002-3062(IT)I
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BETWEEN:
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SYLVAIN BELISLE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
________________________________________________________________
Appeal heard on April 4, 2003, at Montréal, Quebec
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Before: The Honourable Judge François Angers
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Appearances:
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For the Appellant:
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The Appellant himself
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Counsel for the Respondent:
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Marie-Claude Landry
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____________________________________________________________________
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 2000 taxation year is dismissed.
The Court suggests that the Appellant proceed under the Public Administration Act.
Signed at Ottawa, Canada, this 14th day of April 2003.
J.T.C.C.
Translation certified true
on this 26th day of April 2004.
Sharlene Cooper, Translator
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Citation: 2004TCC38
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Date: 20040108
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Docket: 2002-3062(IT)I
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BETWEEN:
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SYLVAIN BELISLE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
(Delivered orally from the bench on April 4, 2003, at Montréal, Quebec
and edited at Edmundston, New Brunswickon January 8, 2004)
Angers, J.
[1] This appeal concerns the Appellant's 2000 taxation year. In filing his income tax return for the year at issue, in computing his non-refundable tax credits, the Appellant claimed an equivalent-to-spouse credit for a wholly dependent person in the amount of $1,043.80 ($6,140 x 17%) in respect of his daughter, Gabrielle. By a reassessment dated December 10, 2001, the Minister of National Revenue disallowed this credit.
[2] The Appellant and his spouse are parents to three children: Gabrielle, Marjolaine and Aurélie. On September 1, 1998, following their separation, the Appellant and his spouse agreed in writing that they would have joint custody of the children, and they set the child support payments at $100 per month payable to the mother. The Appellant and his spouse did indeed live separate and apart throughout the entire taxation year at issue.
[3] The issue that arises in this case has been addressed by this Court, and by the Federal Court of Appeal, in a number of past cases. In Nelson v. Canada, [2000] F.C.J. No. 1613 (Q.L.), [2000] 4 C.T.C. 252, in circumstances similar to those of this case whereby court orders awarded joint custody of the children to the Appellant and his former spouse and required the Appellant to pay a child support amount, Sharlow J. determined that subsection 118(5) of the Income Tax Act (the "Act") made it impossible to claim the equivalent-to-spouse tax credit for a wholly dependent person. Subsection 118(5) reads in part as follows:
(5) Support. No amount may be deducted under subsection (1) in computing an individual's tax payable under this Part for a taxation year in respect of a person where the individual is required to pay a support amount (as defined in subsection 56.1(4)) to the individual's spouse or former spouse in respect of the person and the individual
(a) lives separate and apart from the spouse or common-law partner or former spouse or common-law partner throughout the year because of the breakdown of their marriage or common-law partnership; or
. . .
[4] I do not believe it is necessary to reproduce subsection 118(1) of the Act, which awards certain personal tax credits to taxpayers under certain circumstances.
[5] The Appellant appeared before the Court acknowledging that the Respondent's position was correct in law. At this point, I shall reproduce a portion of his own determination in this regard, in order to illustrate his opinion concerning the application of subsection 118(5) of the Act:
[translation]
I understand that the role of this Court is to determine what is correct in law in its fields of jurisdiction and that it cannot take the legislature's place to determine the anachronicity of section 118(5) in a joint custody dispute.
Having read a number of judgments relating to section 118(5), I believe that my appeal will be dismissed and that the Court will deem the Respondent's position to be correct in law.
However, as a Canadian, I would expect an honourable institution such as the Tax Court of Canada to be a guarantor and also to convey a sense of justice and equity based on the prevailing values of social and moral justice about which there is consensus in Canadian society today.
Furthermore, I will tell you that every person to whom I related this dispute unanimously agrees that this situation defies common sense and is contrary to the feelings that the average person has concerning justice.
Joint custody is a relatively new phenomenon that is gaining the support of parents facing a separation. In addition, this type of arrangement is preferable for the children. In my opinion, unless the legislature amends the wording of section 118(5), you will see appearing before you an ever-increasing number of parents who find themselves in the same situation as mine and furthermore who, in the majority of cases, will present cases that are more costly to hear than the amount that is at issue. Neither parents nor the Government of Canada will benefit financially in this kind of situation. In the end, the children are the real losers, because if people are like me, a parent of three children with a gross annual income of $33,000, every penny counts to be able to ensure their well-being.
[6] Subsection 118(5) makes it impossible for a taxpayer to claim a personal tax credit in respect of a person where the individual is required to pay a support amount in respect of the person and the individual lives separate and apart from the spouse throughout the year. Due to the joint custody, not only does the Appellant assume with his former spouse half of the physical custody of the children, but also half of the expenditures made concerning them and half of the care they have received. Thus, the Appellant feels it is unfair that he is not permitted to claim the tax credit in such a situation.
[7] Although we can sympathize with the Appellant's situation, nevertheless I must dismiss the appeal. At the hearing, the Appellant asked me to grant him the same treatment that the Chief Justice of this Court granted the taxpayer in Lavoie v. Canada, [2002] T.C.J. No. 34 (Q.L.), a decision that was handed down on January 28, 2002. In that case, Garon C.J.T.C. recommended that the tax authorities take the necessary steps to grant the taxpayer a remission of tax under subsection 23(2) of the Financial Administration Act. The circumstances and facts in Lavoie are not the same as those of this case and the allegation of injustice is ill-founded on the same grounds. In Lavoie, the child in respect of whom the taxpayer claimed the tax credit lived with him and was wholly dependent on him throughout the entire year, by parental agreement, whereas a court order had awarded custody to the former spouse. That is not the case here. In any event, our Court does not have the authority to render a decision under subsection 23(2) of the Financial Administration Act. The appropriate Minister has the discretion to grant a remission of tax, and a recommendation from our Court, however commendable, cannot bind the appropriate Minister in exercising his discretion. In this case, it is up to the Appellant to decide whether or not he wants to try to use the provisions of the Financial Administration Act.
[8] The Appeal is dismissed.
Signed at Edmundston, New Brunswick, this 8th day of January 2004.
Angers, J.
Translation certified true
on this 26th day of April 2004.
Sharlene Cooper, Translator
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