Teskey
J.T.C.C.:—This
appeal
was
heard
under
the
informal
procedure.
Brian
Paustian
("Brian”)
appeals
his
assessment
of
income
tax
for
the
1991
taxation
year
whereby
the
Minister
of
National
Revenue
(the
"Minister”)
deleted
the
family
allowance
in
the
amount
of
$531
from
income
and
disallowed
the
claim
for
the
equivalent-to-married
exemption
in
the
amount
of
$5,233.
Issue
to
be
decided
The
only
issue
is
whether
the
appellant
is
entitled
to
claim
the
equivalent-to-married
amount
in
respect
of
his
daughter
Jennifer
for
the
1991
taxation
year.
Regardless
of
my
determination
on
this
issue,
on
consent,
the
assessment
is
referred
back
to
the
Minister
for
reconsideration
and
reassessment
on
the
basis
that
the
appellant
is
entitled
to
the
child
tax
credit
in
respect
of
his
daughter
Jennifer
for
the
1991
taxation
year.
Facts
The
following
facts
are
admitted:
1.
In
June
1990
the
taxpayer
and
his
spouse
(Patricia)
were
divorced
but
they
had
joint
custody
of
the
children,
Jennifer
and
Michael.
The
children
resided
with
their
mother
and
Brian
paid
$200
a
month
per
child
commencing
June
1,
1990
pursuant
to
a
divorce
judgment
dated
June
27,
1990.
Jennifer
was
born
on
October
10,
1975
and
Michael
was
born
on
May
2,
1978.
2.
In
1990
Jennifer
was
kicked
out
of
her
mother’s
house
and
lived
with
Brian
for
seven
weeks
before
moving
back
with
her
mother
in
November
1990.
3.
In
May
1991
Jennifer
was
kicked
out
again
and
went
back
to
live
with
her
dad
who
has
had
custody
of
her
ever
since.
4.
Brian
paid
maintenance
of
$400
for
the
months
of
January
1991
up
to
and
including
May
1991
for
both
Jennifer
and
Michael.
5.
Maintenance
payments
stopped
after
May
1991
as
Brian
had
full
custody
of
Jennifer
and
was
not
required
to
pay
for
Michael.
6.
Brian’s
1991
tax
return
was
filed
with
the
following
being
claimed:
(a)
Family
allowance
payments
for
Jennifer
for
seven
months
June
1991
to
December
1991
($322)
(b)
Maintenance
payments
for
Jennifer
and
Michael
January
to
May
1991
($1,000
each
for
a
total
of
$2,000)
(c)
Equivalent-to-married
exemption
for
Jennifer
for
seven
months
($5,233
x
7/12
$3,052.58).
7.
That
Jennifer
was
an
eligible
child
under
paragraph
122.2(2)(a)
for
1991.
8.
The
appellant
was
entitled,
in
January
1992,
to
receive
a
family
allowance
under
the
Family
Allowances
Act,
1973
in
respect
of
his
daughter
Jennifer.
9.
In
the
1991
taxation
year,
the
appellant
was
entitled
to
a
deduction
for
maintenance
in
respect
of
Jennifer
in
the
amount
of
$200
per
month
x
5
months,
for
a
total
of
$1,000.
10.
In
computing
his
income
for
the
1991
taxation
year,
the
appellant
claimed
a
deduction
for
maintenance
paid
in
the
amount
of
$2,000,
$1,000
of
which
was
in
respect
of
Jennifer.
11.
The
Minister
allowed
the
deduction
for
maintenance
as
claimed
by
the
appellant.
12.
Patricia,
for
the
year
1991,
claimed
the
full
amount
of
$5,233
being
the
equivalent-to-married
amount
in
respect
to
Jennifer.
Appellant’s
position
The
appellant
wished
to
prorate
the
equivalent
of
the
married
amount
and
if
he
cannot
do
so,
he
wishes
to
disentitle
himself
to
claim
a
deduction
and
instead
to
claim
the
equivalent-to-married
amount.
Respondent's
position
That
a
taxpayer
entitled
to
claim
the
deduction
whether
it
is
taken
or
not
disentitles
the
taxpayer
to
the
married
amount
pursuant
to
subsection
118(5)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
’’Act”).
Analysis
Subsection
118(5)
of
the
Act
has
the
effect
that
where
a
spouse
is
entitled
to
a
deduction
for
payments
paid
pursuant
to
certain
provisions
of
the
Act,
then
that
spouse
is
disqualified
for
the
purpose
of
section
118.
Subsection
(5)
reads
as
follows:
Where
an
individual
is
computing
the
individual’s
income
for
a
taxation
year
is
entitled
to
a
deduction
under
paragraph
60(b),
(c)
of
(c.l)
in
respect
of
a
payment
for
the
maintenance
of
a
spouse
or
child,
the
spouse
or
child
shall,
for
the
purposes
of
this
section
(other
than
the
definition
"qualified
pension
income"
in
subsection
(7))
be
deemed
not
to
be
the
spouse
or
child
of
the
individual.
This
subsection
is
clear
as
to
its
meaning.
My
colleague
Judge
Mogan,
in
Gifford
v.
M.N.R.,
[1991]
2
C.T.C.
2254,
91
D.T.C.
953,
dealt
with
this
same
subsection.
The
effect
of
this
subsection
as
interpreted
by
Judge
Mogan,
is
that
Jennifer
is
deemed
not
to
be
a
child
of
the
appellant
and
therefore,
the
appellant
is
not
entitled
to
the
"equivalent
married
amount".
I
agree
with
this.
The
appellant’s
appeal
is
therefore
dismissed
as
to
the
issue
before
me.
On
consent,
a
judgment
will
be
issued
allowing
the
appeal,
without
costs,
and
sending
the
matter
back
to
the
Minister
of
National
Revenue
for
reconsideration
and
reassessment
on
the
basis
that
the
appellant
is
entitled
to
the
child
tax
credit
in
relation
to
his
daughter
Jennifer
for
the
1991
taxation
year.
The
appellant
is
entitled
to
no
further
relief.
Appeal
dismissed.
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