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Docket: 2003-1585(IT)I |
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BETWEEN: |
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GORDON J. LEIDAL, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal heard on September 11, 2003 at Vancouver, British Columbia
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By: The Honourable D.G.H. Bowman, Associate Chief Justice |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Michael Taylor |
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JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2001 taxation year is dismissed.
Signed at Toronto, Ontario this 15th day of September, 2003.
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"D.G.H. Bowman |
A.C.J.
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Citation: 2003TCC671 |
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Date: 20030915 |
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Docket: 2003-1585(IT)I |
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BETWEEN: |
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GORDON J. LEIDAL, |
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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
Bowman, A.C.J.
[1] The Appellant claims a disability tax credit in respect of Robert McDonald for his 2001 taxation year.
[2] Robert McDonald was seriously injured in 1999 and has been unable to resume work. He was severely disabled in 2001 and has obtained a Form 2201, a Disability Tax Credit Certificate signed by a medical doctor. Unquestionably Robert McDonald would be entitled to the disability tax credit under sections 118.3 and 118.4.
[3] The Appellant and his wife have, since the accident in 1999, fully supported Mr. McDonald. They pay his rent, buy his food and provide him with any other support he needs. They are to be commended for their compassion and social responsibility. Mr. McDonald is wholly dependent upon them.
[4] Mr. McDonald is an adult. He has never been legally adopted by the Appellant, his wife or the parents of either the Appellant or his wife. He lives in a separate residence on which the Appellant pays rent.
[5] Subsection 118.3(2) provides in somewhat abstruse language that a dependent can transfer to his or her supporting person the disability tax credit to which the dependent would otherwise be entitled. The question is whether Robert McDonald was a "dependent" of the Appellant. He is not related by blood or marriage to him. Dependent is defined in subsection 118(6) as follows:
(6) For the purposes of paragraphs (d) and (e) of the description of B in subsection (1) and paragraph (4)(e), "dependent" 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 it
(a) the child or grandchild of the individual or of the individual's spouse or common-law partner; or
(b) the parent, grandparent, brother, sister, uncle, aunt, niece or nephew, if resident in Canada at any time in the year, of the individual or of the individual's spouse or common-law partner.
[6] Mr. Leidal contends that what he is doing for Mr. McDonald goes beyond friendship and establishes that Mr. McDonald is Mr. Leidal's "adopted brother by-fact". He points to the fact that both the Income Tax Act (ss 251.4) as well as the General Income Tax and Benefit Guide at line 305 recognize adoption whether it be legal or in fact. He says there is no reason if there can be adoption in fact of a child there cannot be adoption in fact of a brother.
[7] Despite the conviction and sincerity with which Mr. Leidal presented his argument, I cannot accept it.
[8] In law there is no such thing as adopting a brother. One can adopt a child in fact but one cannot adopt an adult as a brother or sister.
[9] The question of adoption in fact was fully and learnedly discussed by Christie, A.C.J. of this Court in Madigane v. M.N.R., [1989] 1 C.T.C. 2103. There is a considerable body of jurisprudence on de facto adoption of a child by a person. For example, Christie, A.C.J. quotes Mr. Justice Angers in Anderson v. M.N.R., [1947] C.T.C. 223 who held that there had been a bona fide de facto adoption. Christie, A.C.J. said:
At page 1033 Mr. Justice Angers said:
Does the word "adoption", inserted in paragraph (f) of subsection 1 of section 2 of the Income War Tax Act by 16-17 George V, chap. 10, and constantly kept in the numerous statutes which followed, apply only to adoptions made in compliance with the requirements of an adoption Act of one of the provinces or does it include a bona fide de facto adoption? This is the question arising for solution.
He held that it included a bona fide de facto adoption. He said at pages 1039-40:
If we take the word "adoption" in its popular sense it means the act by which a person adopts as his own the child of another or, in other terms, the acceptance by a person of a child of other parents to be the same as his own child.
This is precisely what the appellant has done with regard to Beverley Price and Helen Price, minor children of Charles Price and Margaret Grace Price, with the latter's consent and, as the evidence discloses, to their relief and entire satisfaction. Beverley was then seven years old and Helen four. ...
[10] Similarly, he referred to Racine and Racine v. Woods, [1983] 2 S.C.R. 173. Christie, A.C.J. in commenting on this case said at paragraphs 11 and 12:
This case also involved a custody dispute between the mother and a married couple who had been given possession of the child who was the subject of the controversy. The child was born on 4 September 1976 and, except for a few months after birth and a brief period in May 1978, the child was with the Racines in their home where she was treated as if she were their own and became an established part of the family. Wilson J. delivered the judgment of the Court and, as happened in Agar, she treated these facts as speaking for themselves in concluding that there had been a de facto adoption. At page 185 she said:
In giving the court power to dispense with the consent of the parent on a de facto adoption the legislature has recognized an aspect of the human condition--that our own self interest sometimes clouds our perception of what is best for those for whom we are responsible. It takes a very high degree of selflessness and maturity--for most of us probably an unattainable degree--for a parent to acknowledge that it might be better for his or her child to be brought up by someone else. The legislature in its wisdom has protected the child against this human frailty in a case where others have stepped into the breach and provided a happy and secure home for the child for a minimum period of three consecutive years. In effect, these persons have assumed the obligations of the natural parents and taken their place. The natural parents' consent in these circumstances is no longer required.
Regardless of the nationality of an individual or his place of residence during a taxation year the question of whether he has been adopted in fact within the meaning of paragraph 251(6) (c) of the Act is to be determined in accordance with Canadian legal criteria. In my opinion the authorities cited clearly show that these basic features are common to the de facto adoptive parent-child relationship. They live in close proximity to each other. In each of these cases the facts are that the child and the adoptive parent or parents were residing under the same roof and the child was under the actual control and custody of the parents who were in a position to exercise effective parental care and guidance on a continuing basis. The adoptive parents and child constituted a family unit or part of such a unit that was presided over by the parents. ...
[11] Even if Mr. Leidal were contending that he had adopted Mr. McDonald as a son (and I have a great deal of difficulty with the notion that one can adopt an adult as a son, either legally or de facto) I doubt that the relationship here would meet the criteria enumerated by Christie, A.C.J.. Here it is contended that Mr. McDonald is a de facto adopted brother. This is not in my view legally possible. Regardless of the sympathy I feel for Mr. Leidal and my admiration for his generosity and compassion I am unable to allow his appeal.
The appeal is dismissed.
Signed at Toronto, Ontario this 15th day of September, 2003.
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"D.G.H. Bowman" |
A.C.J.
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CITATION: |
2003TCC671 |
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COURT FILE NO.: |
2003-1585(IT)I |
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STYLE OF CAUSE: |
Gordon J. Leidal v. The Queen |
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PLACE OF HEARING: |
Vancouver, British Columbia |
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DATE OF HEARING: |
September 11, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable D.G.H. Bowman, Associate Chief Justice |
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DATE OF JUDGMENT: |
September 15, 2003 |
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APPEARANCES: |
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Counsel for the Appellant: |
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Counsel for the Respondent: |
Michael Taylor |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |