Sauve v. R. – TCC: No Child Tax Credit Where “Set-Off” Amount Calculated Under Federal Child Support Guidelines

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Sauve v. The Queen (March 27, 2014 – 2014 TCC 99) is a case essentially on all fours with the Verones decision of the Federal Court of Appeal blogged earlier on this site:
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The taxpayer was living separate and apart from his wife and paying her child support. He claimed to be entitled to a child tax credit because his wife was “paying” him child support by virtue of the set off calculation used by the family court to determine his support obligations.

The court rejected his argument and dismissed the appeal:

[5] Mr. Sauve submits that his former spouse makes a form of support payment to him with respect to the children because she has imputed income that has been factored into the support amount that he has to pay. This type of argument has been rejected by this Court on many occasions, and recently has been rejected by the Federal Court of Appeal in Verones v The Queen, 2013 FCA 69. In Verones, the Court states at paragraph 6:

[6] The whole discussion about the concept of set-off is a mere distraction from the real issue, i.e. whether or not the appellant is the only parent making a “child support payment” in virtue of “an order of a competent tribunal or an agreement”, as defined under the Act.

[6] In addition, Mr. Sauve submits that the legislation should permit the tax credits in his circumstances. These arguments appear to be based on policy considerations which are the sole prerogative of Parliament and not the Courts. As stated by the Federal Court of Appeal in Chaya v The Queen, 2004 FCA 327, at paragraph 4:

[4] The applicant says that the law is unfair and he asks the Court to make an exception for him. However the Court does not have that power. The Court must take the statute as it finds it. It is not open to the Court to make exceptions to statutory provisions on the grounds of fairness or equity. If the applicant considers the law unfair, his remedy is with Parliament, not with the Court.

[7] Since the tax credits that are claimed are clearly prohibited by subsection 118(5) of the Act, the appeal must be dismissed.