March 24, 2021
In a recent case before the Tax Court of Canada, Elaine Jungen v. The Queen, Justice Bruce Russell must have wondered that as well.
When the Canada Revenue Agency (CRA) denied the DTC for her 15-year-old son JA, his mother took her fight to court, appealing an unjust decision that disregarded the severity of the symptoms of his ADHD.
After all, JA’s pediatric physician, Dr. L. Kardel was very specific in her examples of the “marked restrictions” in mental functions as far as difficulties with adaptive functioning from the time he was nine years old.
- requires reminders for showering, grooming, wearing deodorant;
- does not go to a store or out into the community alone;
- will not look at or speak to store clerks without support from his mother;
- needs reminders for daily routines and activities;
- does not interact appropriately with others;
- says things that are hurtful or disrespectful and is often argumentative and oppositional;
- deliberately annoys other people;
- these all have a negative impact on his ability to interact with peers and adults;
- [d]oes not talk to me [i.e., Dr. Kardal] during visits at my office even though he has known me for many years;
- requires a specialized educational program;
- needs support from an adult to follow multi-step instructions;
- has a weak memory and poor concept of time;
- lacks the necessary awareness and insight to solve problems;
- [he] is functioning well below most teenagers his age who are independent in most of these areas.
In her testimony JA’s mother references a 2017 evaluation from the school psychologist:
“… he had difficulties managing his emotional and behavioural impulses at home and at school; frequently lost his temper and presented as resentful/angry; intentionally annoyed others; refused to comply with adult requests at school; has bullied, threatened, and intimidated others; and may have been physically aggressive with others."
The Counsel representing the CRA argued that this was not enough to meet the statutory requirement for "all or substantially all of the time" for adaptive functioning in the Income Tax Act.
Justice Russell disagreed.
“The ‘adaptive functioning’ statutory reference to ability re social interactions is particularly relevant. The evidence has established that JA is seriously lacking in ability to engage in social interactions.
As referenced above, the written reports of his paediatrician and school psychologist, and the largely unchallenged testimony of his mother, all attest to this. According to his mother’s basically uncontradicted testimony, this was not just from time to time, but rather substantially all of the time.”
TAGS - DTC, CRA
