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Date: 20030130
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Docket: 2002-770(IT)I
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BETWEEN:
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COREY DEVINK,
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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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REASONS FOR JUDGMENT
Little, J.
A.
FACTS
[1] The Appellant and
Sandra Marie Lynn Hillyer ("Hillyer") are the parents
of Jessica Athena Lynn Hillyer (the
"Child") born on the 11th day of September 1989.
[2] The Appellant and
Hillyer were never married. However, they lived together in the
home of Hillyer's parents for several months before and after
the Child was born.
[3] In November 1989
the Appellant and Hillyer entered into an Agreement
(Exhibit A-1). Pursuant to the Agreement the Appellant
agreed to pay Hillyer the sum of $150.00 per month for the
support of the Child. The Agreement was filed in the Provincial
Court Registry in Quesnel, British Columbia on the 14th day of
November 1989 (Exhibit A-1).
[4] On the 20th day
of November 1990 Judge deVilliers of the Provincial Court issued
an Order granting custody of the Child to the parents of Hillyer
(Exhibit A-2).
[5] On the 26th day
of July 1991 Mr. Justice Millward of the Supreme Court of British
Columbia ordered that the Order of Judge deVilliers be set aside
and that Hillyer (the mother) be given custody of the Child.
[6] On the 16th day
of September 1996 the Appellant and Hillyer entered into a
Childcare Agreement (Exhibit A-4). Pursuant to the Childcare
Agreement the Appellant agreed to pay Hillyer payments of $150.00
per month for the maintenance of the Child. The first payment
shall commence on the 1st day of September 1996. The Appellant
also agreed to pay the sum of $50.00 per month to a registered
education fund for the benefit of the Child.
[7] On the 1st day of
February 2000 Mr. Justice Meiklem of the Supreme Court of British
Columbia issued an Order granting the Appellant access to the
Child on specific dates.
[8] On the 3rd day of
April 2000 Judge E.R. Smith of the Provincial Court issued an
Order. The said Order stated, in part, as follows:
And this Court further orders that the
Agreement filed in the Supreme Court of British Columbia, Quesnel
Registry, File No. 7908 be varied to provide that the
Applicant pay to the Respondent for the maintenance and support
of the Child, Jessica Athena Lynn Hillyer, the sum of $227.00 per
month commencing on July 1, 2000 and continuing on the first day
of each and every month thereafter until further order of this
Court.
[9] On the 17th day
of April 2000 Mr. Justice Tysoe of the British Columbia Supreme
Court issued an Order granting the Appellant access to see his
Child at various times throughout the year.
[10] When the Appellant
filed his income tax returns for the 1998, 1999 and 2000 taxation
years he deducted the following maintenance payments:
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1998
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$1,800.00
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1999
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$1,816.00
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2000
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$ 900.00
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[11] By Notices of
Reassessment dated the 13th day of November 2001 the Minister of
National Revenue (the "Minister") reassessed the
Appellant's 1998, 1999 and 2000 taxation years and denied the
following maintenance payments:
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1998
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$1,800.00
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1999
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$1,816.00
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2000
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$ 900.00
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B.
ISSUE
[12] Is the Appellant
allowed to deduct maintenance payments of $1,800.00, $1,816.00
and $900.00 made for the benefit of the Child in the 1998, 1999
and 2000 taxation years?
ANALYSIS
[13] Mrs. D. Boudreau of
the Canada Customs and Revenue Agency ("CCRA") wrote to
the Appellant on October 31, 2001. Mrs. Boudreau made the
following comments in her letter:
We acknowledge receipt of your letters dated
September 12, 2001 and October 16, 2001 to support you claim for
Child Support Payments.
Maintenance payments to a person who has
never been your spouse but is the natural parent of your child
are deductible only if the payments are made under an order of a
competent tribunal (such as a Family Court) in accordance with
the laws of a province. Your Child Care Agreement dated September
16, 1996 does not qualify as a Court Order, therefore your
payments are not deductible.
[14] Subsection 252(4) of
the Income Tax Act (the "Act") reads as
follows:
In this Act,
(a) words referring to a spouse at any
time of a taxpayer include the person of the opposite sex who
cohabits at that time with the taxpayer in a conjugal
relationship and
(i) has so cohabited with the taxpayer
throughout a 12-month period ending before that time, or
(ii) would be a parent of a child of whom the
taxpayer would be a parent, if this Act were read
without reference to paragraph (1)(e) and
subparagraph (2)(a)(iii)
and, for the purposes of this paragraph,
where at any time the taxpayer and the person cohabit in a
conjugal relationship, they shall, at any particular time after
that time, be deemed to be cohabiting in a conjugal relationship
unless they were not cohabiting at the particular time for a
period of at least 90 days that includes the particular time
because of a breakdown of their conjugal relationship
(b) references
to marriage shall be read as if a conjugal relationship between 2
individuals who are, because of paragraph (a), spouses of
each other were a marriage;
(c) provisions
that apply to a person who is married apply to a person who is,
because of paragraph (a), a spouse of a taxpayer; and
(d) provisions
that apply to a person who is unmarried do not apply to a person
who is, because of paragraph (a), a spouse of a
taxpayer.
[15] Based on the wording
contained in subsection 252(4) of the Act and applicable
from 1993 and including the 2000 taxation year, the term
"spouse" included a common law spouse of the opposite
sex. In particular, a spouse of a taxpayer included a person of
the opposite sex who cohabited with the taxpayer in a conjugal
relationship, provided that they had cohabited throughout a
twelve-month period before that time.
[16] The Appellant was
unable to conclusively establish that he had
"cohabited" with Hillyer throughout a twelve-month
period.
[17] However, subparagraph
252(4)(a)(ii) specifically provides that a spouse of a
taxpayer includes a person of the opposite sex who was a parent
of the taxpayer's child.
[18] Since the Appellant
was the father of the Child it follows based on the definition in
subparagraph 252(4)(a)(ii) that Hillyer was the
Appellant's spouse.
[19] It also follows that
the Appellant does not require a Court Order in order to be
allowed to deduct the maintenance payments that he made to the
Child in the 1998, 1999 and 2000 taxation years pursuant to the
Childcare Agreement of 1996.
[20] The appeals are
allowed, without costs, to permit the Appellant to deduct the
following maintenance payments:
1998
taxation
year
$1,800.00
1999
taxation
year
$1,816.00
2000
taxation
year
$900.00
Signed at Vancouver, British Columbia, this
30th day of January 2003.
J.T.C.C.
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