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.