Tax Court of Canada Judgments

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.

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