Christie
A.C.J.T.C.:
—
This
appeal
is
governed
by
the
informal
procedure
provided
for
under
section
18
and
following
sections
of
the
Tax
Court
of
Canada
Act.
The
year
under
review
is
1989.
In
computing
his
income
for
that
year
the
appellant
sought
to
deduct
$14,400.00
as
maintenance
payments.
In
reassessing
the
appellant’s
liability
to
income
tax
for
1989
the
Minister
of
National
Revenue
(the
“Minister”)
reduced
the
$14,400.00
by
$3,600.00,
thereby
limiting
the
deduction
to
$10,800.00.
The
$3,600.00
is
composed
of
$2,600.00
paid
by
the
appellant
directly
to
his
son
James
Douglas
Shaw
and
$1,000.00
paid
by
the
appellant
to
his
son’s
landlord
David
Kerr.
The
onus
is
on
the
appellant
to
show
that
the
reassessment
is
in
error.
This
can
be
established
on
a
balance
of
probabilities.
Where
the
onus
lies
has
been
settled
by
numerous
authorities
binding
on
this
Court.
It
is
sufficient
to
refer
to
two
judgments
of
the
Supreme
Court
of
Canada
in
this
regard:
À.
v.
Anderson
Logging
Co.,
(sub
nom.
Anderson
Logging
Co.
v.
The
King)
[1925]
S.C.R.
45,
[1925]
2
D.L.R.
143
and
Johnston
v.
Minister
of
National
Revenue,
[1948]
S.C.R.
486,
[1948]
C.T.C.
195,
3
D.T.C.
1182.
Paragraph
12
of
the
Reply
to
the
Notice
of
Appeal
reads:
12.
In
so
reassessing
the
Appellant,
the
Minister
relied
on
the
following
facts:
(a)
the
facts
herein
before
admitted
and
stated;
(b)
by
order
of
the
Supreme
Court
of
Ontario
dated
May
21,
1982
the
Appellant
was
required
to
pay
maintenance
of
$900.00
a
month
for
support
of
his
wife,
Dorothy
Jean
Shaw,
and
$300.00
per
month
for
support
of
his
son,
James
Douglas
Shaw;
(c)
the
maintenance
payments
in
respect
of
the
son
were
to
continue
until
one
or
more
of
the(c)
the
maintenance
payments
in
respect
of
the
son
were
to
continue
until
one
or
more
of
the
following
occurred:
(i)
the
son
becomes
sixteen
years
old
and
ceases
to
be
in
full
time
attendance
at
an
educational
institution;
(ii)
the
son
ceases
to
reside
with
his
mother;
(iii)
the
son
becomes
18
years
old
unless
he
continues
to
be
in
full
time
attendance
at
an
educational
institution;
(iv)
the
son
marries;
or
(v)
the
son
dies.
(d)
the
son
was
born
on
July
15,
1968;
(e)
during
the
1989
taxation
year
the
son
was
the
age
of
majority,
attended
Queen’s
University
and
did
not
reside
with
and
was
not
in
the
custody
of
his
mother;
(f)
during
the
1989
taxation
year
the
son
was
in
full
time
attendance
at
Queen’s
University;
(g)
in
the
1989
taxation
year
the
Appellant
paid
$1,000.00
to
the
son’s
landlord
which
was
not
required
by
the
Decree
Nisi;
(h)
in
the
1989
taxation
year
the
Appellant
paid
$2,600.00
directly
to
his
son.
At
the
commencement
of
the
hearing
yesterday
the
parties
agreed
that
the
provisions
of
the
Income
Tax
Act
which
govern
the
deductability
of
the
$3,600.00
are
paragraph
60(b)
and
subsection
60.1(1).
What
is
relevant
for
present
purposes
in
paragraph
60(b)
provides
that
there
may
be
deducted
in
computing
a
taxpayer’s
income
for
a
taxation
year
an
amount
paid
by
the
taxpayer
in
the
year,
pursuant
to
a
decree
of
a
competent
tribunal,
as
alimony
or
other
allowance
payable
on
a
periodic
basis
for
the
maintenance
of
the
recipient
thereof,
children
of
the
marriage,
or
both
the
recipient
and
children
of
the
marriage,
if
he
was
living
apart
from,
and
was
separated
pursuant
to
a
divorce
from
his
former
spouse
to
whom
he
was
required
to
make
the
payment
at
the
time
the
payment
was
made
and
throughout
the
remainder
of
the
year.
Again
what
is
relevant
for
present
purposes
in
subsection
60.1(1)
enacts
that
where
a
decree
described
in
paragraph
60(c)
has
been
made
providing
for
the
periodic
payment
of
an
amount
by
a
taxpayer
to
a
person
who
is
the
taxpayer’s
former
spouse
or
for
the
benefit
of
the
person
or
children
in
the
custody
of
the
person,
or
both
the
person
and
those
children
the
amount
or
any
part
thereof,
when
paid,
shall
be
deemed,
for
the
purposes
of
paragraph
60(c),
to
have
been
paid
to
and
received
by
that
person.
In
À.
v.
Curzi,
(sub
nom.
Curzi
v.
Canada),
(sub
nom.
Canada
v.
Curzi)
[1994]
2
C.T.C.
220,
94
D.T.C.
6417
Mr.
Justice
Noël
of
the
Federal
Court-Trial
Division
said
this
about
subsection
60.1(1),
at
page
226
(D.T.C.
6421):
In
my
view,
the
purpose
of
subsection
60.1(1)
is
to
allow
the
deduction
of
amounts
paid
for
the
benefit
of
a
child
as
long
as
the
child
is
still
in
the
custody
of
the
former
spouse
or
the
former
spouse
remains
under
the
duty
of
care
which
attaches
to
custody.
When
a
child
is
emancipated
and
leave
the
custody
of
the
spouse,
the
problem
addressed
by
Parliament
in
allowing
the
deduction
of
amounts
paid
for
the
benefit
of
the
child
ceases
to
exist:
from
that
point
on,
the
former
spouse
no
longer
has
a
duty
of
care
deriving
from
his
or
her
right
of
custody,
and
the
support
can
no
longer
be
considered
to
be
owing
or
paid
on
account
of
that
duty.
The
appellant
placed
in
evidence
a
number
of
documents
including
the
Decree
Nisi
that
was
issued
out
of
the
Supreme
Court
of
Ontario
by
Mr.
Justice
Poulin
on
May
21,
1982
dissolving
the
marriage
between
the
appellant
and
Dorothy
Jean
Shaw,
subject
to
the
Decree
being
made
absolute
after
three
months.
The
Decree
was
made
absolute.
There
is
no
dispute
about
the
allegation
that
James
Jr.
was
born
on
July
15,
1968.
The
basic
question
to
be
answered
in
the
determination
of
this
appeal
is
this:
in
1989
was
the
appellant’s
son
James
Douglas
Shaw
“in
the
custody
of’
his
mother
within
the
meaning
of
subsection
60.1(1)
of
the
Income
Tax
Act?
There
is
simply
no
evidence
before
the
Court
from
which
it
can
be
concluded
that
the
answer
to
this
question
is
yes.
Indeed
the
inference
to
be
drawn
from
what
was
said
at
the
hearing
yesterday
is
that
the
appellant
could
not
adduce
the
evidence
required
to
establish
an
affirmative
answer
because
he
does
not
have
the
necessary
particular
knowledge
of
the
relationship
between
James
Jr.
and
his
mother
at
the
relevant
time.
The
appellant’s
son
was
not
called
upon
to
testify
because
it
is
said
that
he
is
in
Vancouver.
The
appellant’s
former
spouse
was
also
not
called
upon
to
testify
because
the
Court
was
informed
that
the
acrimony
between
her
and
the
appellant
is
such
that
he
considered
calling
her
as
a
witness
on
his
behalf
would
be
impracticable.
In
the
light
of
the
foregoing
the
appeal
cannot
succeed
and,
accordingly,
judgment
shall
issue
dismissing
it.
Appeal
dismissed.
Email this Content