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The Tax Court dismissed an appeal for an eligible dependant amount, holding the appellant remained legally required to pay child support under an unvaried consent order.
The separation agreement unambiguously required only the appellant to pay child support; set-off did not create a reciprocal obligation by the other parent; therefore s.118(5) applied to bar the appellant from claiming the wholly dependent person credit for 2018 and 2019, and the appeals for those years were dismissed. Procedurally, the 2020 appeal was quashed but the December 14, 2021 notice of appeal was treated as the notice of objection for 2020; the 2021 appeal was quashed as notices filed before the February 3, 2023 assessment were premature and invalid.
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The September 2014 consent order directed only the appellant to pay child support; the set-off arrangement reflected respective parental obligations and financial means but did not constitute mutual "support payments" as defined in s.56.1(4); therefore s.118(5) applies and the appellant is not entitled to the wholly dependent person credit for 2014.
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Because the appellant lived separate and apart from his former spouse and was required by a court order to pay periodic child and spousal support (support amounts as defined in s.56.1(4)), subsection 118(5) of the Income Tax Act barred him from claiming the eligible dependant, child and related transferred disability tax credits, therefore the Minister's reassessments and assessment were correct.
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Subsection 118(5) applies on the facts; the obligation to pay support is not an enumerated or analogous ground under s.15 and therefore the provision does not infringe the appellant's Charter equality rights; the Tax Court cannot alter the family court interim order and no evidence justified ignoring it, so the appeal is dismissed.
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The appellant failed to discharge his onus to prove the 2008 legal fees were incurred to enforce a pre-existing right to child support because he did not produce the notice of motion or other material particularizing the purpose of the motion, relied on an opinion letter and incomplete invoices, and could not identify invoice items on cross-examination; accordingly the legal fees deduction is denied and the reassessment is upheld; subsection 118(5) precludes the eligible dependant deduction in the circumstances.
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Subsection 118(5) of the Income Tax Act is unambiguous and its conditions were satisfied (the Appellant lived separate and apart and paid a support amount to his former partner in respect of the child), therefore the Appellant was not entitled to claim the non‑refundable tax credits and the reassessment was upheld.
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Because the Appellant was required by court order to pay a support amount (including arrears fixed and payable as of January 26, 2006) in respect of the dependant and he lived separate and apart from his former spouse, subsection 118(5) of the Income Tax Act prevented him from claiming the eligible dependant credit under paragraph 118(1)(b), and the appeal must be dismissed.
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Because the separation agreement continued to require the appellant to pay child support during 2003-2005 and the statutory provisions bar the claimed deduction where support obligations remain, the appellant was not entitled to the eligible dependant credit for those years; reliance on CRA agents does not alter statutory entitlement and the remedy for bad advice is a separate action against CRA.
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Because both spouses were entitled to the eligible dependant amount for the same child and they failed to agree who would claim it, subsection 118(4)(b) of the Income Tax Act precludes either from claiming the credit; therefore the appellant's appeal is dismissed.
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