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Date: 20030130 |
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Docket: 2002-770(IT)I |
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BETWEEN: |
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COREY DEVINK, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
_______________________________________________________________
Appeals heard on October 4, 2002, at Prince George, British Columbia
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Before: The Honourable Judge L.M. Little |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Raj Grewal |
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JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 1998, 1999 and 2000 taxation years are allowed, without costs, and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Vancouver, British Columbia, this 30th day of January 2003.
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"L.M. Little" |
J.T.C.C.
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Date: 20030130 |
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Docket: 2002-770(IT)I |
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BETWEEN: |
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COREY DEVINK, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Little, J.
A. FACTS
[1] The Appellant and Sandra Marie Lynn Hillyer ("Hillyer") are the parents of Jessica Athena Lynn Hillyer (the "Child") born on the 11th day of September 1989.
[2] The Appellant and Hillyer were never married. However, they lived together in the home of Hillyer's parents for several months before and after the Child was born.
[3] In November 1989 the Appellant and Hillyer entered into an Agreement (Exhibit A-1). Pursuant to the Agreement the Appellant agreed to pay Hillyer the sum of $150.00 per month for the support of the Child. The Agreement was filed in the Provincial Court Registry in Quesnel, British Columbia on the 14th day of November 1989 (Exhibit A-1).
[4] On the 20th day of November 1990 Judge deVilliers of the Provincial Court issued an Order granting custody of the Child to the parents of Hillyer (Exhibit A-2).
[5] On the 26th day of July 1991 Mr. Justice Millward of the Supreme Court of British Columbia ordered that the Order of Judge deVilliers be set aside and that Hillyer (the mother) be given custody of the Child.
[6] On the 16th day of September 1996 the Appellant and Hillyer entered into a Childcare Agreement (Exhibit A-4). Pursuant to the Childcare Agreement the Appellant agreed to pay Hillyer payments of $150.00 per month for the maintenance of the Child. The first payment shall commence on the 1st day of September 1996. The Appellant also agreed to pay the sum of $50.00 per month to a registered education fund for the benefit of the Child.
[7] On the 1st day of February 2000 Mr. Justice Meiklem of the Supreme Court of British Columbia issued an Order granting the Appellant access to the Child on specific dates.
[8] On the 3rd day of April 2000 Judge E.R. Smith of the Provincial Court issued an Order. The said Order stated, in part, as follows:
And this Court further orders that the Agreement filed in the Supreme Court of British Columbia, Quesnel Registry, File No. 7908 be varied to provide that the Applicant pay to the Respondent for the maintenance and support of the Child, Jessica Athena Lynn Hillyer, the sum of $227.00 per month commencing on July 1, 2000 and continuing on the first day of each and every month thereafter until further order of this Court.
[9] On the 17th day of April 2000 Mr. Justice Tysoe of the British Columbia Supreme Court issued an Order granting the Appellant access to see his Child at various times throughout the year.
[10] When the Appellant filed his income tax returns for the 1998, 1999 and 2000 taxation years he deducted the following maintenance payments:
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1998 |
$1,800.00 |
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1999 |
$1,816.00 |
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2000 |
$ 900.00 |
[11] By Notices of Reassessment dated the 13th day of November 2001 the Minister of National Revenue (the "Minister") reassessed the Appellant's 1998, 1999 and 2000 taxation years and denied the following maintenance payments:
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1998 |
$1,800.00 |
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1999 |
$1,816.00 |
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2000 |
$ 900.00 |
B. ISSUE
[12] Is the Appellant allowed to deduct maintenance payments of $1,800.00, $1,816.00 and $900.00 made for the benefit of the Child in the 1998, 1999 and 2000 taxation years?
ANALYSIS
[13] Mrs. D. Boudreau of the Canada Customs and Revenue Agency ("CCRA") wrote to the Appellant on October 31, 2001. Mrs. Boudreau made the following comments in her letter:
We acknowledge receipt of your letters dated September 12, 2001 and October 16, 2001 to support you claim for Child Support Payments.
Maintenance payments to a person who has never been your spouse but is the natural parent of your child are deductible only if the payments are made under an order of a competent tribunal (such as a Family Court) in accordance with the laws of a province. Your Child Care Agreement dated September 16, 1996 does not qualify as a Court Order, therefore your payments are not deductible.
[14] Subsection 252(4) of the Income Tax Act (the "Act") reads as follows:
In this Act,
(a) words referring to a spouse at any time of a taxpayer include the person of the opposite sex who cohabits at that time with the taxpayer in a conjugal relationship and
(i) has so cohabited with the taxpayer throughout a 12-month period ending before that time, or
(ii) would be a parent of a child of whom the taxpayer would be a parent, if this Act were read without reference to paragraph (1)(e) and subparagraph (2)(a)(iii)
and, for the purposes of this paragraph, where at any time the taxpayer and the person cohabit in a conjugal relationship, they shall, at any particular time after that time, be deemed to be cohabiting in a conjugal relationship unless they were not cohabiting at the particular time for a period of at least 90 days that includes the particular time because of a breakdown of their conjugal relationship
(b) references to marriage shall be read as if a conjugal relationship between 2 individuals who are, because of paragraph (a), spouses of each other were a marriage;
(c) provisions that apply to a person who is married apply to a person who is, because of paragraph (a), a spouse of a taxpayer; and
(d) provisions that apply to a person who is unmarried do not apply to a person who is, because of paragraph (a), a spouse of a taxpayer.
[15] Based on the wording contained in subsection 252(4) of the Act and applicable from 1993 and including the 2000 taxation year, the term "spouse" included a common law spouse of the opposite sex. In particular, a spouse of a taxpayer included a person of the opposite sex who cohabited with the taxpayer in a conjugal relationship, provided that they had cohabited throughout a twelve-month period before that time.
[16] The Appellant was unable to conclusively establish that he had "cohabited" with Hillyer throughout a twelve-month period.
[17] However, subparagraph 252(4)(a)(ii) specifically provides that a spouse of a taxpayer includes a person of the opposite sex who was a parent of the taxpayer's child.
[18] Since the Appellant was the father of the Child it follows based on the definition in subparagraph 252(4)(a)(ii) that Hillyer was the Appellant's spouse.
[19] It also follows that the Appellant does not require a Court Order in order to be allowed to deduct the maintenance payments that he made to the Child in the 1998, 1999 and 2000 taxation years pursuant to the Childcare Agreement of 1996.
[20] The appeals are allowed, without costs, to permit the Appellant to deduct the following maintenance payments:
1998 taxation year $1,800.00
1999 taxation year $1,816.00
2000 taxation year $900.00
Signed at Vancouver, British Columbia, this 30th day of January 2003.
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"L.M. Little" |
J.T.C.C.
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COURT FILE NO.: |
2002-770(IT)I |
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STYLE OF CAUSE: |
Corey Devink and Her Majesty the Queen |
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PLACE OF HEARING |
Prince George, British Columbia |
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DATE OF HEARING |
October 4, 2002 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge L.M. Little |
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DATE OF JUDGMENT |
January 30, 2003 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Raj Grewal |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |