Ascah v. The Queen, docket 2000-4486-IT-I (Informal Procedure)

Date: 20010412

Docket: 2000-4486-IT-I

BETWEEN:

LOUIS ASCAH,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Tardif, J.T.C.C.

[1]            This is an appeal for the 1999 taxation year.

[2]            The issue is whether, in calculating his non-refundable tax credits for the 1999 taxation year, the appellant was entitled to include $5,380 as an equivalent-to-spouse amount for his daughter Stéphanie.

[3]            The appellant admitted almost all of the facts assumed in making the assessment. Those facts, as set out in the Reply to the Notice of Appeal, are as follows:

[TRANSLATION]

(a)            the union of the appellant and Claude Saint-Mleux (hereinafter the "former spouse") produced two children:

                - Stéphanie, who was born on March 20, 1980

                - Valérie, who was born on August 6, 1976;

(b)            pursuant to a Superior Court judgment dated December 18, 1987, legal custody of the two children was awarded jointly to both parents, while physical custody was awarded to the mother;

(c)            under that judgment, the appellant was responsible for paying the mother "support of $1,000 a month for the maintenance and education of the two children only";

(d)            no document has been placed in the appellant's file showing that the judgment of December 18, 1987, was subsequently varied by a decree, order, judgment or written agreement between the appellant and his former spouse for the maintenance of the children of their marriage;

(e)            the information provided by the appellant indicates that he stopped paying his former spouse support in August 1997;

(f)             according to the appellant, Stéphanie left her mother's home in August 1998 and has since been living with him in Deauville;

7.              . . .

(a)            the appellant's daughter, Stéphanie Ascah, had her 18th birthday on March 20, 1998, and therefore came of age on that date under the laws of Quebec;

(b)            the Minister is of the view that the parents' right of custody ceases to exist when their child comes of age or becomes emancipated;

. . .

(d)            Stéphanie reported a net income of $1,560 for the 1999 taxation year.

[4]            The appellant testified and explained that in August 1998 he had eagerly agreed to take in and assume financial responsibility for his young daughter Stéphanie, who had been living with her mother until that time.

[5]            The evidence showed that Stéphanie was in need of special support at the time because she was going through a "difficult" period. The appellant obviously made every effort and gave of himself unstintingly to assist his daughter.

[6]            There is no doubt in my mind that the appellant was a receptive, attentive father who was very concerned about his daughter's well-being; he left no stone unturned to enable her to get through her difficult period by welcoming her into his home and joining her in seeking a solution.

[7]            However, the appellant admitted that Stéphanie had come of age on March 20, 1998. Accordingly, for 1999, the taxation year at issue, she had become a major over 18 years of age.

[8]            We must therefore turn to paragraph 118(1)(b) of the Income Tax Act ("the Act") to determine the conditions that must be met in order to receive the equivalent-to-spouse amount.

[9]            Paragraph 118(1)(b) reads as follows:

Wholly dependent person - in the case of an individual who does not claim a deduction for the year because of paragraph (a) and who, at any time in the year,

(i)       is

(A) a person who is unmarried and who does not live in a common-law partnership, or

(B) a person who is married or in a common-law partnership, who neither supported nor lived with their spouse or common-law partner and who is not supported by that spouse or common-law partner, and

(ii)      whether alone or jointly with one or more other persons, maintains a self-contained domestic establishment (in which the individual lives) and actually supports in that establishment a person who, at that time, is

(A) except in the case of a child of the individual, resident in Canada,

(B) wholly dependent for support on the individual, or the individual and the other person or persons, as the case may be,

(C) related to the individual, and

(D) except in the case of a parent or grandparent of the individual, either under 18 years of age or so dependent by reason of mental or physical infirmity,

an amount equal to the total of

(iii) $6,000, and

(iv) an amount determined by the formula

$5,000 - (D - $500)

where

D                 is the greater of $500 and the income for the year of the dependent person.

[10]          To be eligible for the equivalent-to-spouse amount or the amount for a dependant age 18 or older, the appellant would have had to prove that Stéphanie's dependence at the time was a result of mental or physical infirmity.

[11]          I do not think that Stéphanie's problems, to which the appellant referred and which accounted for the change in who looked after her and where she lived starting in August 1998, are comparable or equivalent to the mental or physical infirmity mentioned in subsection 118(1).

[12]          I am satisfied on the evidence that the circumstances that led Stéphanie to leave her mother's home to move in with her father, the appellant, were rather temporary in nature and not serious enough to be characterized as an infirmity. A person's being under medical supervision, even for a long time, does not mean that the person has an infirmity within the meaning of subsection 118(1).

[13]          In light of the evidence and the provisions of the Act, there is no doubt that, in calculating his non-refundable tax credits for 1999, the appellant was not entitled to include $5,380 as an equivalent-to-spouse amount for his daughter Stéphanie.

[14]          For these reasons, the appeal must be dismissed.

Signed at Ottawa, Canada, this 12th day of April 2001.

"Alain Tardif"

J.T.C.C.

Translation certified true on this 30th day of October 2002.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

2000-4486(IT)I

BETWEEN:

LOUIS ASCAH,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on March 14, 2001, at Sherbrooke, Quebec, by

the Honourable Judge Alain Tardif

Appearances

For the Appellant:                                                                 The Appellant himself

Counsel for the Respondent:                              Alain Gareau

JUDGMENT

                The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 12th day of April 2001.

"Alain Tardif"

J.T.C.C.

Translation certified true on this 30th day of October 2002.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]