Date: 20010528
Docket: 2000-5153-IT-I
BETWEEN:
GAIL PRICE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Beaubier, J.T.C.C.
[1]
This appeal pursuant to the Informal Procedure was heard at
Lethbridge, Alberta on May 17, 2001. The appeal proceeded on
agreed facts and exhibits filed by agreement.
[2]
The issue before the Court is whether the Appellant should have
included as her income for 1998 the sum of $4,200 paid by her
former husband, Richard Gibson, as child support for their
daughter, Kim, who was in the custody of the Appellant.
[3]
On August 8, 1996 the Gibsons completed "Minutes of
Settlement" in which Mr. Gibson agreed to pay child support
of $500 per month for Kim commencing July 1, 1996 (Paragraph
3(a)).
[4]
In this agreement:
1.
Page 1 stated that the divorce action had been commenced as
Number 4806010696, Queen's Bench, Lethbridge.
2.
Page 1 stated that the agreement is subject to the approval of
the Court in respect to custody and maintenance.
3.
Gail was granted custody of the infant children of the marriage
(Paragraph 2). Kim was born June 30, 1981.
4.
The parties agreed that if the Federal legislation enacted
non-tax deductible child support, the support payment for Kim
would drop to $325 per month (Paragraph 3(b)).
[5]
On December 17, 1996 Richard Gibson was ordered to pay Gail $350
per month support for Kim by Yanosik J. of the Alberta Court of
Queen's Bench.
[6]
On January 16, 1998, the divorce judgment of Langston J. of the
Alberta Court of Queen's Bench stated:
IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF LETHBRIDGE/MACLEOD
BETWEEN:
GAIL ANNETTE GIBSON
Petitioner
RICHARD HALL GIBSON
Respondent
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BEFORE THE HONOURABLE MR JUSTICE J.H. LANGSTON JUSTICE
OF THE COURT OF QUEEN'S BENCH OF ALBERTA
|
)
)
)
)
)
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AT THE COURT HOUSE, IN THE CITY OF LETHBRIDGE, IN THE
PROVINCE OF ALBERTA, ON THE 16TH DAY OF JANUARY, 1998.
|
DIVORCE Judgment
(WITHOUT ORAL EVIDENCE)
UPON THE PETITION FOR DIVORCE coming on before the Court this
day;
AND UPON READING the pleadings and the Affidavits of
Gail Annette Gibson and Alvin W. Baldwin;
AND UPON THE PARTIES ACKNOWLEDGING the prior Court Order of
Mr. Justice C.G. Yanosik granted on the 17th day of December,
1996, in which the Respondent was ordered to pay the sum of
$350.00 per month to the Petitioner for the maintenance and
support of the infant child, KIMBERLEY DAWN MICHELE GIBSON, which
Order was not appealed and which Order the Respondent has
followed precisely to date, and which Order granted to the
Respondent custody of the child, SEAN MICHAEL RICHARD GIBSON;
IT IS ADJUDGED:
1.
THAT the Court renders a Judgment of Divorce between the
Petitioner and Respondent who were married on the 28th day of
May, 1977, at the City of Lethbridge, in the Province of Alberta,
the divorce to be effective on the 31st day after the day that
this Judgment is rendered, unless this Judgment is appealed
before that 31st day.
IT IS ORDERED:
2.
THAT the Petitioner shall have sole custody of the child of the
marriage, namely, KIMBERLEY DAWN MICHELE GIBSON, born June 30,
1981, with the Respondent having reasonable access to the said
child.
3.
IT IS ORDERED:
THAT the Respondent shall have sole custody of the child of the
marriage, namely, SEAN MICHAEL RICHARD GIBSON, born September 23,
1978, with the Petitioner having reasonable access to the said
child.
4.
IT IS ORDERED:
THAT each party shall bear their own costs in respect of the
within proceedings.
5.
IT IS FINALLY ORDERED AND ADJUDGED:
THAT the amounts owing under the prior Order referred to in the
Preamble be paid to the Director of Maintenance Enforcement, and
shall be enforced by the Director unless the creditor files with
the Court and the Director a notice in writing that she does not
wish the Order to be enforced by the Director, pursuant to
Section 7 of the Maintenance Enforcement Act.
"signature"
JUSTICE OF THE COURT OF
QUEEN'S BENCH OF ALBERTA
"signature"
CLERK OF THE COURT
CONSENTED TO BY:
SHAPIRO & COMPANY
PER: "signature"
DANIEL I. SHAPIRO
Solicitor for the Respondent
ENTERED at the City of Lethbridge,
in the Province of Alberta, this
19th day of January, 1998
"signature"
CLERK OF THE COURT
THE SPOUSES ARE NOT FREE TO REMARRY UNTIL THIS JUDGMENT TAKES
EFFECT, AT WHICH TIME EITHER SPOUSE MAY OBTAIN A CERTIFICATE OF
DIVORCE FROM THIS COURT. IF AN APPEAL IS TAKEN FROM THIS
JUDGMENT, IT MAY DELAY THIS JUDGMENT TAKING EFFECT.
[7]
Langston J.'s judgment of January 16, 1998:
1.
Is the first order of the Alberta Court of Queen's Bench
which granted custody of Kim to Gail (Paragraph 2); and
2.
Refers to an "acknowledgement" that the amounts owing
under Yanosik J.'s order shall be paid (Paragraph
5).
[8]
Pursuant to subsection 56.1(4) of the Income Tax Act, the
commencement day for a support order is defined as:
"commencement day" at any time of an agreement or
order means
(a)
where the agreement or order is made after April 1997, the day it
is made; and
(b)
where the agreement or order is made before May 1997, the day, if
any, that is after April 1997 and is the earliest of
(i)
the day specified as the commencement day of the agreement or
order by the payer and recipient under the agreement or order in
a joint election filed with the Minister in prescribed form and
manner,
(ii)
where the agreement or order is varied after April 1997 to change
the child support amounts payable to the recipient, the day on
which the first payment of the varied amount is required to be
made,
(iii)
where a subsequent agreement or order is made after April 1997,
the effect of which is to change the total child support amounts
payable to the recipient by the payer, the commencement day of
the first such subsequent agreement or order, and
(iv) the
day specified in the agreement or order, or any variation
thereof, as the commencement day of the agreement or order for
the purposes of this Act.
[9]
However, the "order" which subsection 56.1(4) deals
with is an "order ... for the benefit of ... children in the
taxpayer's custody" as described in
subsection 56.1(1). That order is the order of Yanosik, J.
and is merely "acknowledged" for the purposes of
Langston, J.'s order. It was not varied by Langston J's
order.
[10] For this
reason, the appeal is dismissed.
Signed at Ottawa, Canada this 28th day of May 2001.
"D.W. Beaubier"
J.T.C.C.
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