Date: 20021016
Docket: A-215-01
Neutral citation: 2002 FCA 388
CORAM: ROTHSTEIN J.A.
BETWEEN:
VICTOR A. CORROLL
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Winnipeg, Manitoba, on October 10, 2002.
Judgment delivered at Ottawa, Ontario, on October 16, 2002.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: NOËL J.A.
SEXTON J.A.
Date: 20021016
Docket: A-215-01
Neutral citation: 2002 FCA 388
CORAM: ROTHSTEIN J.A.
BETWEEN:
VICTOR A. CORROLL
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] This is an appeal from a decision of a Tax Court Judge (Rip J.) denying the applicant's claim for a transfer of disability tax credits from his wife.
[2] As Rip J. pointed out, this is a sympathetic case. The applicant's wife has suffered from schizophrenia for over thirty years. The applicant attends at his wife's residence two or three times per week to do maintenance, cleaning, bringing food and looking after the property.
[3] However, the applicant testified before Rip J. that his wife was living by herself or on her own in the relevant years. Rip J. found that even though the applicant was giving help to his wife, he was living with another woman and that there had been a breakdown of the marriage. This finding was based on an assumption to this effect by the Minister of National Revenue in his reply to the applicant's Notice of Appeal in the Tax Court and which was not refuted by the applicant.
[4] Section 118.8 of the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, provides in relevant part:
| 118.8. For the purpose of computing the tax payable under this Part for a taxation year by an individual who, at any time in the year, is a married person or a person who is in a common-law partnership (other than an individual who, by reason of a breakdown of their marriage or common-law partnership, is living separate and apart from the individual's spouse or common-law partner at the end of the year and for a period of 90 days commencing in the year), there may be deducted an amount determined by the formula [...] |
118.8. Le particulier qui, à un moment d'une année d'imposition, est marié ou vit en union de fait peut déduire dans le calcul de son impôt payable en vertu de la présente partie pour cette année -- sauf si, pour cause d'échec du mariage ou de l'union de fait, il vit séparé de son époux ou conjoint de fait à la fin de l'année et pendant une période de 90 jours commençant au cours de l'année --, le montant calculé selon la formule suivante: [...] |
[5] Having found that, by reason of a breakdown of his marriage, the applicant was living separate and apart from his spouse in the relevant period, perhaps understandable in the circumstances, Rip J. concluded that the disability tax credit was not transferrable to the applicant. This finding is in accordance with section 118.8 of the Act.
[6] We cannot find any error in the conclusion of the Tax Court Judge. The application for judicial review should be dismissed.
"Marshall Rothstein"
J.A.
"I agree
Marc Noël J.A."
"I agree
J. Edgar Sexton J.A."
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: A-215-01
STYLE OF CAUSE: Victor A. Corroll v. Her Majesty the Queen
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 10, 2002
REASONS FOR JUDGMENT OF
THE HONOURABLE MR. JUSTICE ROTHSTEIN
DATED OCTOBER 16, 2002
APPEARANCES:
Mr. Victor A. Corroll on his own behalf
Mr. Jeff Pniowsky for the Respondent
Department of Justice
SOLICITORS OF RECORD:
Mr. Victor A. Corroll on his own behalf
Winnipeg, Manitoba
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent