Date: 20000802
Docket: 1999-4496-IT-I
BETWEEN:
DONALD FRANK ROBINSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Rip, J.T.C.C.
[1] This is an appeal, filed under the informal procedure,
from an assessment made by the Minister of National Revenue
("Minister") under the Income Tax Act
("Act") in respect of the appellant's 1997
taxation year in which the Minister disallowed his claim for
alimony and maintenance payments in the year.
[2] At all relevant times Mr. Robinson was divorced from Doris
Robinson. Geoffrey Robinson, a child of the appellant and Ms.
Robinson, was born on July 27, 1977.
[3] In 1996, Geoffrey Robinson made an application to the
Ontario Court, Provincial Division, for an order that his father
make support payments to him. In his application Geoffrey
Robinson stated that his father had neglected his financial
responsibilities during the past 13 years and he has been
able to support himself during those years with the help of his
mother. "However, recently my financial situation has become
worse due to circumstances beyond my control. My mother no longer
has the ability to support me. I will be attending university in
the fall of 1996 and the cost of doing so will be great." At
the time of making the application Geoffrey Robinson was earning
$50 a week and living with his mother.
[4] On December 11, 1996 the appellant was ordered by the
Ontario Court to pay his son for support in the sum of $300 per
month commencing December 13, 1996 with payment to be
indexed pursuant to the provisions of subsections 34(5) and (6)
of the Provincial Family Law Act. The payments from
December 1996, January 1997 and February 1997 were to be made
directly by the appellant to his son. During 1997 the appellant
paid monthly to his son the sum of $300. It is the aggregate
amount of $3,600 that the appellant has deducted as alimony or
maintenance payments for 1997 in computing his income for the
year.
[5] The respondent acknowledges that the appellant made the
payments of $300 a month to his son pursuant to an order of a
court. The appellant states that according to the order he has to
make payments directly to his son and that the payments were
ordered to assist his son while attending university.
Geoffrey Robinson, in 1997, reached the age of majority.
[6] In his Notice of Appeal, the appellant alleged that he is
being discriminated against because he made the payments directly
to his son rather than to his former spouse.
[7] Paragraph 60(b) of the Act,permits a
taxpayer in certain cases to deduct in computing his or her
income for a taxation year amounts paid to a spouse or former
spouse for the benefit of the children of the marriage. This
provision provides a formula for determining the amount a
taxpayer may deduct for a child support amount paid in a taxation
year to the taxpayer's spouse or former spouse who is the
parent of the child of whom the taxpayer is a natural parent.
[8] Subsection 60.1(1) states that for the purpose of
paragraph 60(b), where an order or agreement, or any
variation thereof, provides for the payment of an amount by a
taxpayer to a person or for the benefit of the person, children
in the person's custody or both the person and those
children, the amount or any part thereof when payable, is deemed
to be payable to and receivable by that person, and when paid, is
deemed to have been paid to and received by that person. In other
words, where an amount is not paid to the former spouse but to
the benefit of a child in that person's custody, the amount
is nevertheless deemed to have been paid to the spouse so that
the payer may deduct the amount as permitted under paragraph
60(b). At trial, the question before me narrowed down to
whether or not Geoffrey Robinson was in his mother's custody
during 1997 when the appellant made payments to him pursuant to
the Court order.[1]
[9] There is no evidence that the appellant, his spouse and
his son Geoffrey Robinson were not resident of Ontario during
1997. Under the Age of Majority and Accountability Act of
Ontario every person reaching the age of majority ceases to be a
minor on attaining the age of 18 years.[2] Under Part III of the
Children's Law Reform Act of Ontario, which deals with
custody, access and guardianship, a reference to a child is a
reference to the child while a minor.[3] In the Divorce Act of Canada a
" 'child of the marriage' means the child of two
spouses or former spouses who, at the age of the material time,
is under the age of 16 years . . . ".
[10] There were several cases cited to me which are relevant
to this appeal. In Guardo v. The Queen,[4] an appeal of de novo from
a decision of this Court, the appellant deducted payments made to
his son who was of the age of majority. Mr. Guardo had been
ordered by the Quebec Superior Court to make payments to his son
while his son was attending the University of Montreal. The
payments were made directly to his son who had moved out of his
mother's home in order to be closer to university. The
Federal Court Trial Division confirmed the decision of this Court
and dismissed the appeal on the grounds that
Mr. Guardo's son was no longer in the custody of his
former spouse.
[11] In The Queen v. Curzi,[5] Noël J., as he then was, made a very
detailed analysis of the previous cases and of the meaning of the
word "custody" and its French version,
"garde". In Curzi the appellant was ordered to
make weekly payments to his son who had attained the age of
majority and attended college. Here, too, the appellant's son
was not residing with his mother, the appellant's former
spouse, but this Court allowed the appeal (unreported). The
Minister appealed to the Federal Court of Trial Division by way
of trial de novo and the Crown's appeal was allowed.
The appellant in Curzi resided in Quebec and was subject
to the provisions of the Civil Code. Noël J. concluded that
the son had withdrawn from the custody of the appellant's
former spouse and therefore subsection 60.1(1) was not
applicable to his situation.
[12] The taxpayer was successful in deducting support payments
he made to his children in Sadler v. Canada,[6] a decision of this
Court. The children were of the age of majority, lived at home
and attended university. My colleague Judge Bell allowed the
appeal after he found that the children were in the custody of
the mother. The children gave a portion of the payments they
received from their father to their mother. They slept at their
mother's home and ate their meals there. The children were
dependent upon their mother and she exercised responsibility for
their well-being.
[13] The word "custody" and the French version
"garde" for purposes of the Divorce Act includes
"care, upbringing and any other incident of custody".[7] The New Shorter
Oxford English Dictionary defines the word
"custody" as "safe-keeping; protection;
care; guardianship". Noël J. made an attempt at
defining the elusive concept of custody in Curzi:
Some aspects of the definition of the expression "child
of the marriage" set out in the Divorce Act evoke a
concept similar to the one contemplated by the support obligation
set out in the Civil Code: a child may be considered to be under
the charge of his or her parents for so long as he or she cannot
provide for his or her own needs, regardless of age.
The concept of "garde" or "custody" evokes
quite another thing. In a divorce, either of the former spouses
may be granted custody of the children. A custody order confers a
right on the parent who is granted custody. It is the parent who
has custody of the children who has ultimate responsibility for
the upbringing . . .
However, the right of custody is not perpetual and a custody
order could not be set up against an emancipated adult child who
voluntarily chooses to withdraw from parental authority. The fact
that a child may, in such circumstances, still be a child of the
marriage because, having left the parental home, he or she cannot
provide for his or her own needs does not mean that the child
remains in the custody of the parent whom he or she has chosen to
leave. It is a prerequisite to the concept of custody that there
be parental authority, which cannot be exercised over an
emancipated adult child who chooses to withdraw from that
authority.[8]
[14] Under subsections 31(1) and (2) of the Family Law
Act of Ontario:
(1) Every parent has an obligation to provide support, in
accordance with need, for his or her unmarried child who is a
minor or is enrolled in a full time program of education, to the
extent that the parent is capable of doing so.
(2) The obligation under subsection (1) does not extend to a
child who is sixteen years of age or older and has withdrawn from
parental control.
[15] Although section 31 of the Family Law Act does not
refer specifically to the word custody, the words "has
withdrawn from parental control" may be reasonably
interpreted to mean that the child has withdrawn from custody. If
a court, on application by an adult child for an order for
support because that child wishes to attend university (which may
entail leaving his or her habitual residence), grants the order,
there is no implication in the order that a spouse has
"parental control" (or "custody") of the
child. Parental control must be proved at trial, as it was in
Sadler.
[16] Custody implies that the child submit himself or herself
to parental control and is dependent to a certain extent. This is
a determination that must be made on the facts and is not
necessarily dependent upon age, although an adult child has a
greater onus than a minor does to prove that he or she is under
the custody of a parent. One must determine, among other things,
whether the adult child, as in the case at bar, has agreed to be
subject to custody by way of his actions. If the child lives at
home, for example, has the child agreed to abide by the rules set
by the parent while living there? If the child attends school and
resides outside the home to facilitate travel to school, that
child may still be under the control of a parent. In
Sadler, one of the children testified that the parents
paid their university tuition, helped with household chores and
were required to observe "basic courtesy", calling
their mother if arriving home late and making arrangements with
their mother for guests staying at her house. Under such an
arrangement it is quite obvious that the children in
Sadler were in the custody of their mother.
[17] In the appeal at bar Geoffrey Robinson made an
application for support from his father because his mother could
not provide him with sufficient funds for his educational needs,
although she did provide him with a home. Geoffrey did not
testify. There is no evidence as to what degree, if any, of
protection, guardianship or safekeeping Geoffrey's mother
exercised toward him or if, perhaps of more importance, Geoffrey
continued to submit himself to his mother's control. It is
one thing to live at home with one's parent because one is
under that parent's control, it is quite another thing to
live with a parent because one wants to save money.
[18] Even if I had found that Ms. Robinson had custody of
Geoffrey I believe that this would not necessarily lead me to
conclude that the appellant is permitted to deduct the support
payments. In Miguelez v. Canada,[9] the appellant had been refused a
deduction for payments he made directly to his daughter who was
of the age of majority. Lamarre J. concluded that the daughter
was not in her mother's custody during the relevant time.
Judge Lamarre stated that two conditions must be met if a person
makes payment to a person who is not a spouse or a former
spouse:[10]
If the support payments are not made to the supporting
person's former spouse, as in this case, they will be
deductible by the appellant if two conditions are met. First, the
payments must be made for the benefit of the former spouse or
children in the former spouse's custody. Second, the written
agreement providing for the payment of the amounts must
explicitly state that the expenses incurred by the appellant for
the maintenance of his child in his former spouse's custody
will be deemed to be payments made as an allowance payable on a
periodic basis and received by the former spouse. This means that
in the written agreement, the former spouse must agree to include
the amounts so paid to another person in his or her income and
the supporting person must agree to deduct them in computing his
or her income.
In my view, the appellant in this case does not meet either of
these conditions. First of all, it is not at all clear from the
agreement of July 5, 1992, that Beatriz Miguelez agreed to
include the amounts paid to her daughter Maia in her own
income.
[19] Judge Lamarre was referring to subsection 60.1(2) of the
Act which states that where the order provides that
subsections 60.1(2) and 56.1(2) shall apply to any amounts paid
or payable thereunder is deemed to be an amount payable by the
taxpayer to that person and received by that person as an
allowance on a periodic basis, and that person is deemed to have
discretion as to the use of that amount.
[20] In the order at bar there is no reference to subsections
60.1(2) or 56.1(2). While in my view the order (or written
agreement) need not use specific language that subsections
60.1(2) and 56.1(2) apply, the contents of the order (or written
agreement) should indicate clearly that the intent of the Court
(or parties) was to have the subsections apply. The order in the
appeal at bar lacks this intent.
[21] When an adult child is under the custody of one parent
and applies to Court for support from the other parent, the
custodial parent ought to be made a party to the motion. In this
way the motion Judge has the opportunity to hear all concerned
parties and, if warranted, issue the appropriate order required
by subsection 60.1(2) of the Act.
[22] The appeal is dismissed.
Signed at Ottawa, Canada, this 2nd day of August 2000.
"Gerald J. Rip"
J.T.C.C.
Email this Content