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Citation: 2003TCC297 |
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Date: 20030506 |
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Docket: 2002-4617(IT)I |
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BETWEEN: |
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DONALD E. BORDEN, |
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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
(Delivered orally from the Bench at
Edmonton, Alberta, on April 10, 2003)
Miller J.
[1] Mr. Donald Borden appeals by way of the informal procedure the assessment of his 2001 taxation year by the Minister of the National Revenue (the Minister), in which Mr. Borden claimed his adult son as a dependent. The Minister denied Mr. Borden the dependent credit under paragraph 118(1)(d) of the Income Tax Act (the Act).
[2] Mr. Borden's son Glen was 29 years old in 2001. Two years earlier he was showing signs of some instability. Mr. Borden suggested this problem was brewing over a long period of time. It surfaced in 1999 with a marked change in Glen's personality. He felt people were after him. His parents had to call in a crisis team. In August 1999, he was taken to the Royal Alexandra Hospital and then transferred to the University of Alberta Hospital where he was seen by psychiatrists. The following is a report of Dr. B. Sowa, Clinical Professor, respecting such hospital stay.[1]
I have reviewed Glen's hospital chart. He was, indeed, admitted to the hospital from September 4-10, 1999, under my care.
Diagnosis: Paranoid Psychosis ?steroid induced
In reviewing my notes, his presentation was also suggestive of schizophrenia. I have not seen Glen since that time and therefore cannot comment further on his illness or current mental state - from your description he seems to be still very ill.
[3] Dr. Sowa was questioning the possibility of the behaviour being steroid induced. Mr. Borden acknowledged that his son worked out a lot and had started taking steroids.
[4] Shortly after this hospital stay, Glen went to his sister's and threatened to kill her friend. He then left town heading for Eastern Canada. His family has not seen him since. Before he left he had been taking some medication which Mr. Borden thought helped, but Glen complained it made him do things he did not want to do. The contact over the last years, including 2001, has been by daily calls. Glen had a car when he moved from Canada to the U.S., traveling from one side of the country to the other and back again. As far as Mr. Borden knows his son has never worked.
[5] Mr. Borden has provided Glen with $50,000 over three years, as well as sending clothes, paying gas bills, phone bills, basically supporting him. Mr. Borden stated, "I was giving him money to keep him alive". When Glen calls, if Mr. Borden suggests no more support can be provided, threats are made. Mr. Borden has had considerable contact with his son, and he feels his son's condition is worsening. Though not a physician, Mr. Borden believes his son has schizophrenia. He does not believe his son has worked since leaving Canada; he would be incapable of doing so. The Bordens can keep track of Glen's whereabouts by the phone calls, bank records and credit card records. Mr. Borden had no medical evidence from 2001.
[6] The Respondent's argument was two-fold. First, there is insufficient evidence to prove Glen suffered any mental infirmity. Second, even if there was an infirmity, it has not been proven the dependency was because of the infirmity.
[7] On the first issue, the Respondent relies on Dr. Sowa's report which suggests a diagnosis of paranoid psychosis was steroid induced, and therefore temporary. There is no further medical evidence to confirm one way or the other. Further, if medication did help, presumably the infirmity could be controlled.
[8] On the second issue, it was clear the son could get around by himself. The Crown acknowledged a dependency, but the fact that the son functioned for three years without returning home suggests the dependency is not as a result of the infirmity.
[9] The sections in issue are paragraph 118(1)(d) and subsection 118(6). They are not that long, so I will quote them:
118(1)(d) For each dependent of the individual for the year who
(i) attained the age of 18 years before the end of the year, and
(ii) was dependent on the individual because of mental or physical infirmity,
the amount determined by...
And they give a certain formula. Subsection 118(6) reads:
For the purposes of paragraph (d) ... of the description of (B) in subsection (1) ... "dependant" of an individual for a taxation year means a person who at any time in the year is dependent on the individual for support, and is
(a) the child or grandchild of the individual...
I need not read the rest.
[10] The issue is whether in 2001, Glen Borden was mentally infirm. I agree there is not much evidence of his condition in 2001, simply due to the circumstances. What we do have is a diagnosis of paranoid psychosis, maybe steroid induced, as well as a comment suggesting schizophrenia. Then we have Mr. Borden, the father's evidence that his perception over the years is that whatever disturbance his son is suffering, it is getting worse.
[11] The term "infirmity" was reviewed by Judge Hershfield in the Mahoney v. R.[2] case. The starting point is that medical evidence is not a requirement for a finding of infirmity. Judge Hershfield indicated at paragraph 33:
... The Act does not say that it would be unreasonable to request or provide medical evidence as to a dependant's general state of health. Nor does it suggest that medical evidence would not assist the taxpayer in establishing the state of health or vitality of the alleged dependent. On the other hand, that the "required" evidentiary bar of the subject provision is relatively low, when contrasted to other health related provisions in the Act might be kept in mind in giving a contextual meaning to the word "infirmity".
Also, it is unnecessary to explore the reason for the infirmity. Again, as Judge Hershfield indicated:
... I return to my earlier comments that the Act, in using the term does not require that we know the cause of the condition. While I appreciate that the Respondent wants to know what caused the infirmity in order to better distinguish valid claims from those that might be viewed with suspicion, the Act imposes no such requirement.[3]
[12] Judge Hershfield concludes that infirmity is abnormally poor health or deteriorated vitality, and goes on to say:[4]
In Tomlinson v. Prudential Insurance Co. of America, an insurance law case, Laidlaw J.A., of the Ontario Court of Appeal, held that:
... the word infirmity must be taken in its ordinary sense to mean physical weakness, debility, frailty or feebleness of body resulting from constitutional defect.
The reason that I am attracted to this definition is its reference to constitutional defect. A person's "constitution", physical and mental, is lay parlance for the whole of a person's health and vitality. It is the indefinable source of strength the diminishment of which does not beg to be explained by a diagnosable medical condition.
[13] This case is a close call, because of the lack of evidence in determining whether Glen's mental state constituted such abnormally poor health or constitutional weakness as to be infirm. On balance, I find it does. Mr. Borden's assessment is supported by some medical diagnosis, though clearly not as timely as would have been preferable. But threats to kill, fears of others, threats to family, do not represent normal mental health. I find they are sufficient to find Glen has an infirmity.
[14] Was the dependency because of this infirmity? Firstly, the Respondent does not argue that there has not been a dependency. She acknowledges there was a dependency and I agree. Mr. Borden summed it up well that he provided money, clothes and other support to his son so his son could live. This seems totally in accord with the definition of dependent for support given by Justice Marceau in the Canada v. Robichaud[5] case; the support was a source of subsistence, sustenance or living.
[15] But was Glen dependent because of the infirmity? If not because of the infirmity, why else? Was he simply a ne'er-do-well heading down the wrong track? On balance, I find there is more evidence to support a finding he was dependent because of his mental infirmity. There is no evidence of Glen's background or comments in his steady stream of calls to suggest a normal offspring simply playing his parents. Though Mr. Borden indicated he considered cutting Glen off, he never wavered from his position that Glen's condition was the root of this most unfortunate situation in which the family found itself.
[16] This is a difficult case since it is a borderline case and because of lack of evidence. I do, however, slip over the border, but just, in your favour, and I will allow the appeal.
Signed at Ottawa, Canada, this 6th day of May, 2003.
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"Campbell J. Miller" |
J.T.C.C.
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CITATION: |
2003TCC297 |
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COURT FILE NO.: |
2002-4617(IT)I |
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STYLE OF CAUSE: |
Donald E. Borden and Her Majesty the Queen |
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PLACE OF HEARING |
Edmonton, Alberta |
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DATE OF HEARING |
April 10, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge Campbell J. Miller |
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DATE OF JUDGMENT |
April 14, 2003 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Brooke Sittler |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |