|
Citation: 2004TCC573
|
|
Date: 20040924
|
|
Docket: 2004-625(IT)I
|
|
BETWEEN:
|
|
ESFIRA VAYNSHTEYN,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Sheridan, J.
[1] The Appellant Mrs. Vaynshteyn is
appealing her assessment for the 2002 taxation year. At
issue is whether she is entitled to claim a non-refundable tax
credit for the in-home care she provided to her elderly parents
at various times throughout 2002. To succeed in her appeal, Mrs.
Vaynshteyn has the onus of proving wrong the assumptions upon
which the Minister of National Revenue based his decision; in
particular, the assumptions set out in paragraphs 7(d) and (e) of
the Reply to the Notice of Appeal:
(d) during the Period, the Appellant
maintained a self-contained domestic establishment at 114
Wolf Ridge Place, Edmonton, which was her ordinary place of
residence, and
(e) during the Period, the
Parents maintained a self-contained domestic establishment at
414, 8956-156 Street, Edmonton, which was their
ordinary place of residence.
The position of the Minister is that the Appellant is not
entitled to this deduction because she did not
"maintain" a "self-contained domestic
establishment" which was concurrently her and her
parents' "ordinary place of residence" at any time
during 2002.[1]
[2] Mrs. Vaynshteyn testified that
until her parents, Sofya and Mikhail Levin, began to experience
health problems in 2002, she resided with her husband and
two grown children in their house at Wolf Ridge Place in
Edmonton, Alberta. Since immigrating to Canada some 15 years ago,
Mr. and Mrs. Levin have lived in Edmonton and in 2002 were
residing in an apartment on 156th Street which they
owned jointly with Mrs. Vaynshteyn. Early in 2002, Mr. Levin
began to experience health problems. Mrs. Levin, who was not well
herself, was finding it increasingly difficult to cope on their
own. This was of great concern to the family. Although it would
have been more convenient for Mrs. Vaynshteyn (who runs a
home-based business) to move her parents in with her, this was
not an option as her father could not negotiate the stairs at the
Wolf Ridge Place house. It was finally decided that the best
solution would be for Mrs. Vaynshteyn to come to stay with
them at the 156th Street apartment.
[3] As it turned out, Mrs. Vaynshteyn
was required to stay with her parents at their apartment not once
but three times in 2002: from January 18, 2002 to
March 30, 2002, from May 2, 2002 to July 12, 2002, and from
September 7, 2002 to October 21, 2002. On each occasion,
Mrs. Vaynshteyn left her Wolf Ridge house and relocated
herself at the 156th Street apartment. Her name was
posted in the apartment directory. She had her own room with its
own bathroom where she installed herself and all the personal
items one would need for a prolonged stay of indefinite duration.
She shared living expenses, including grocery costs and condo
fees, with her parents. Though she left the apartment regularly
to work out of her home office at Wolf Ridge Place and to take
care of errands such as grocery shopping, during the relevant
periods, Mrs. Vaynshteyn returned to eat and sleep at the
apartment.
[4] In October 2002, the situation
changed. Mr. Levin's health had deteriorated to the point he
needed to be cared for in a nursing home. Mrs. Levin's health was
also failing and she could not remain alone in the apartment.
Now, however, no longer having to take her father's mobility
needs into account, Mrs. Vaynshteyn decided to return to her Wolf
Ridge Place house and to move her mother in with her and her
family. Mrs. Levin brought all the things needed for a long stay,
including items for cooking. Mrs. Vaynshteyn looked after her
mother in her own home from October 22 to December 31, 2002.
[5] The Minister concedes that in
2002, Mrs. Vaynshteyn met most of the requirements of paragraph
118(1)(c.1) in that she provided care during certain periods to
parents who were over 65 years of age. He contends, however, that
Mrs. Vaynshteyn did not provide in-home care in a
"self-contained domestic establishment which was the
ordinary place of residence" of Mrs. Vaynshteyn and
her parents.
[6] Whether this is so is a question
of fact. Both Mrs. Vaynshteyn and Mrs. Levin were credible
witnesses. I am satisfied on a balance of probabilities that
during the relevant periods in 2002, they were maintaining a
self-contained domestic establishment which was their ordinary
place of residence. Specifically, I find that during the three
periods from January 18, 2002 to October 21, 2002,
Mrs. Vaynshteyn had established as her ordinary place of
residence the 156th Street apartment that she shared
with her parents. She was taking her meals there, providing care
to her parents, sleeping at and working from the 156th
Street apartment. Although legal title does not in itself
determine a place of residence, Mrs. Vaynshteyn's position is
further strengthened, in my view, by her joint ownership of her
parents' apartment. Conversely, she could not reasonably be
expected to divest herself of her legal interest in the Wolf
Ridge Place house merely to shore up her claim for a deduction:
her husband and children were resident there, her business was
located there and she had no way of knowing how long her ailing
parents would require her care. It seems to me that it is the
unpredictable nature of when, and for how long care will be
required to which the words "... at any time in the
[taxation] year ..." in paragraph 118(1)(c.1) are
directed. The legislation does not specify a minimum period of
care, only that it occur in the year, thus recognizing both the
necessity of such care and its transitory quality. In Mrs.
Vaynshteyn's situation, this proved to be the case; after
October 21, 2002 when, sadly, her father's health had
deteriorated to the point where appropriate care could only be
provided in a nursing home, her presence at the apartment (in so
far as he was concerned) was no longer needed. It was then she
resumed her residency at Wolf Ridge Place. For all of these
reasons, I am satisfied that Mrs. Vaynshteyn and her parents
were maintaining the 156th Street apartment as their
ordinary place of residence for each of the periods between
January 18, 2002 and October 21, 2002.
[7] If I am wrong in so deciding, I
further find Mrs. Vaynshteyn was providing in-home care for her
mother within the meaning of the legislative provision at
Wolf Ridge Place from October 22, 2002 to December 31, 2002.
The uncontradicted evidence of Mrs. Vaynshteyn and her mother is
that Mrs. Levin moved into her daughter's home with the intention
of establishing residency there during her period of ill health.
She brought her cooking things with her and enough clothes and
personal items for a long stay. She is not fluent in English; she
gave her testimony through a translator at the hearing. Although
not as restricted in her movement as her husband had been, Mrs.
Levin had and continues to have her own difficulties in getting
around on her own. It is unreasonable to conclude that from
October 22, 2002 to December 2002 she was flitting between the
two addresses. Given the state of her health and her reliance on
her daughter for, among other things, her ability to maintain
contact with her husband in the nursing home, I am satisfied that
for the period October 22, 2002 to December 2002, she and her
daughter Mrs. Vaynshteyn were maintaining as their ordinary
place of residence the house at Wolf Ridge Place.
[8] Accordingly, the appeal is
allowed, with costs, and the reassessment is referred back to the
Minister for reconsideration and reassessment.
Signed at Ottawa, Canada, this 24th day of September,
2004.
Sheridan, J.
Email this Content