Date: 20010528
Docket: 2000-5153-IT-I
BETWEEN:
GAIL PRICE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Beaubier, J.T.C.C.
[1] This appeal pursuant to the Informal Procedure was heard at Lethbridge, Alberta on May 17, 2001. The appeal proceeded on agreed facts and exhibits filed by agreement.
[2] The issue before the Court is whether the Appellant should have included as her income for 1998 the sum of $4,200 paid by her former husband, Richard Gibson, as child support for their daughter, Kim, who was in the custody of the Appellant.
[3] On August 8, 1996 the Gibsons completed "Minutes of Settlement" in which Mr. Gibson agreed to pay child support of $500 per month for Kim commencing July 1, 1996 (Paragraph 3(a)).
[4] In this agreement:
1. Page 1 stated that the divorce action had been commenced as Number 4806010696, Queen's Bench, Lethbridge.
2. Page 1 stated that the agreement is subject to the approval of the Court in respect to custody and maintenance.
3. Gail was granted custody of the infant children of the marriage (Paragraph 2). Kim was born June 30, 1981.
4. The parties agreed that if the Federal legislation enacted non-tax deductible child support, the support payment for Kim would drop to $325 per month (Paragraph 3(b)).
[5] On December 17, 1996 Richard Gibson was ordered to pay Gail $350 per month support for Kim by Yanosik J. of the Alberta Court of Queen's Bench.
[6] On January 16, 1998, the divorce judgment of Langston J. of the Alberta Court of Queen's Bench stated:
IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF LETHBRIDGE/MACLEOD
BETWEEN:
GAIL ANNETTE GIBSON
Petitioner
RICHARD HALL GIBSON
Respondent
|
BEFORE THE HONOURABLE MR JUSTICE J.H. LANGSTON JUSTICE OF THE COURT OF QUEEN'S BENCH OF ALBERTA |
) ) ) ) ) |
AT THE COURT HOUSE, IN THE CITY OF LETHBRIDGE, IN THE PROVINCE OF ALBERTA, ON THE 16TH DAY OF JANUARY, 1998. |
DIVORCE Judgment
(WITHOUT ORAL EVIDENCE)
UPON THE PETITION FOR DIVORCE coming on before the Court this day;
AND UPON READING the pleadings and the Affidavits of Gail Annette Gibson and Alvin W. Baldwin;
AND UPON THE PARTIES ACKNOWLEDGING the prior Court Order of Mr. Justice C.G. Yanosik granted on the 17th day of December, 1996, in which the Respondent was ordered to pay the sum of $350.00 per month to the Petitioner for the maintenance and support of the infant child, KIMBERLEY DAWN MICHELE GIBSON, which Order was not appealed and which Order the Respondent has followed precisely to date, and which Order granted to the Respondent custody of the child, SEAN MICHAEL RICHARD GIBSON;
IT IS ADJUDGED:
1. THAT the Court renders a Judgment of Divorce between the Petitioner and Respondent who were married on the 28th day of May, 1977, at the City of Lethbridge, in the Province of Alberta, the divorce to be effective on the 31st day after the day that this Judgment is rendered, unless this Judgment is appealed before that 31st day.
IT IS ORDERED:
2. THAT the Petitioner shall have sole custody of the child of the marriage, namely, KIMBERLEY DAWN MICHELE GIBSON, born June 30, 1981, with the Respondent having reasonable access to the said child.
3. IT IS ORDERED:
THAT the Respondent shall have sole custody of the child of the marriage, namely, SEAN MICHAEL RICHARD GIBSON, born September 23, 1978, with the Petitioner having reasonable access to the said child.
4. IT IS ORDERED:
THAT each party shall bear their own costs in respect of the within proceedings.
5. IT IS FINALLY ORDERED AND ADJUDGED:
THAT the amounts owing under the prior Order referred to in the Preamble be paid to the Director of Maintenance Enforcement, and shall be enforced by the Director unless the creditor files with the Court and the Director a notice in writing that she does not wish the Order to be enforced by the Director, pursuant to Section 7 of the Maintenance Enforcement Act.
"signature"
JUSTICE OF THE COURT OF
QUEEN'S BENCH OF ALBERTA
"signature"
CLERK OF THE COURT
CONSENTED TO BY:
SHAPIRO & COMPANY
PER: "signature"
DANIEL I. SHAPIRO
Solicitor for the Respondent
ENTERED at the City of Lethbridge,
in the Province of Alberta, this
19th day of January, 1998
"signature"
CLERK OF THE COURT
THE SPOUSES ARE NOT FREE TO REMARRY UNTIL THIS JUDGMENT TAKES EFFECT, AT WHICH TIME EITHER SPOUSE MAY OBTAIN A CERTIFICATE OF DIVORCE FROM THIS COURT. IF AN APPEAL IS TAKEN FROM THIS JUDGMENT, IT MAY DELAY THIS JUDGMENT TAKING EFFECT.
[7] Langston J.'s judgment of January 16, 1998:
1. Is the first order of the Alberta Court of Queen's Bench which granted custody of Kim to Gail (Paragraph 2); and
2. Refers to an "acknowledgement" that the amounts owing under Yanosik J.'s order shall be paid (Paragraph 5).
[8] Pursuant to subsection 56.1(4) of the Income Tax Act, the commencement day for a support order is defined as:
"commencement day" at any time of an agreement or order means
(a) where the agreement or order is made after April 1997, the day it is made; and
(b) where the agreement or order is made before May 1997, the day, if any, that is after April 1997 and is the earliest of
(i) the day specified as the commencement day of the agreement or order by the payer and recipient under the agreement or order in a joint election filed with the Minister in prescribed form and manner,
(ii) where the agreement or order is varied after April 1997 to change the child support amounts payable to the recipient, the day on which the first payment of the varied amount is required to be made,
(iii) where a subsequent agreement or order is made after April 1997, the effect of which is to change the total child support amounts payable to the recipient by the payer, the commencement day of the first such subsequent agreement or order, and
(iv) the day specified in the agreement or order, or any variation thereof, as the commencement day of the agreement or order for the purposes of this Act.
[9] However, the "order" which subsection 56.1(4) deals with is an "order ... for the benefit of ... children in the taxpayer's custody" as described in subsection 56.1(1). That order is the order of Yanosik, J. and is merely "acknowledged" for the purposes of Langston, J.'s order. It was not varied by Langston J's order.
[10] For this reason, the appeal is dismissed.
Signed at Ottawa, Canada this 28th day of May 2001.
"D.W. Beaubier"
J.T.C.C.