Docket: 2007-3330(IT)I
BETWEEN:
BRIGITTE DeREPENTIGNY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal heard
on February 25, 2008, at Montréal,
Quebec
Before: The Honourable
Justice Réal Favreau
Appearances:
|
For the Appellant:
|
The Appellant herself
|
|
Counsel for the Respondent:
|
Vlad Zolia
|
____________________________________________________________________
JUDGMENT
The Appellant's appeal from the notice of
redetermination dated February 20, 2007, for the period from
July 2005 to June 2006, and the notice of redetermination dated December 13, 2006,
for the period from July to November 2006, under which notices the Appellant's
child tax benefits were revised; and against the notice of redetermination
dated January 26, 2007, for the period from October 2005 to
April 2006, and the notice of redetermination dated December 1, 2006,
for the period from July to October 2006, under which notices the amounts
of the Appellant's Goods and Services Tax Credit were revised, is allowed, and
the matters are referred back to the Minister of National Revenue for
reconsideration and for new notices of redetermination to be issued in order to
give effect to this Judgment.
Signed at Ottawa, Canada, this 14th day of
May 2008.
"Réal Favreau"
Translation certified
true
on this 9th day of
July 2008.
Brian McCordick,
Translator
Citation: 2008TCC304
Date: 20080514
Docket: 2007-3330(IT)I
BETWEEN:
BRIGITTE DeREPENTIGNY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
By notice of
redetermination dated February 20, 2007, for the period from
July 2005 to June 2006, and by notice of redetermination dated
December 13, 2006, for the period from July to November 2006,
the Minister of National Revenue ("the Minister") revised the
Appellant's child tax benefits and determined that she had been overpaid
$4,258.91 for the 2004 base year, and $3,031.30 for the
2005 base year.
[2]
By notice of
redetermination dated January 26, 2007, for the period from
October 2005 to April 2006, and by notice of redetermination dated
December 1, 2006, for the period from July to October 2006,
the Minister revised the Goods and Services Tax credit amounts paid to the
Appellant, and determined that she was overpaid $461.40 for the 2004 taxation
year and $476.00 for the 2005 taxation year.
[3]
The only question to be
decided in the instant appeal is whether the Appellant and Igal Ravimi lived
separately during the periods contemplated by the notices of determination
referred to above at paragraphs 1 and 2 ("the periods
in issue").
[4]
The Appellant is the
mother of four children: David Lauzon, born on August 26, 1991; Raphaël
Lauzon, born on July 5, 1993; Frédérick Lauzon, born on
February 17, 1996; and Eden Ravimi, born on
February 6, 2001.
[5]
The Appellant had
custody of her children during the periods in issue.
[6]
According to the
Appellant's testimony, she began living with Igal Ravimi in
February 1999, and they married in May 2000. They were a couple until
August 2005, at which time they separated.
[7]
Mr. Ravimi is of
Israeli origin, and, upon arriving in Canada, he had only a temporary resident
permit that had been granted to him as a tourist. In order to help him
regularize his situation with the Department of Immigration and enable him to
remain in Canada, the Appellant sponsored him. At the hearing of the appeal,
the Appellant still had three years left as a sponsor. In the weeks preceding
the hearing of the appeal, Mr. Ravimi obtained his Canadian permanent
resident permit.
[8]
During the periods in
issue, the Appellant lived at 75 Saint‑Lambert Street in Salaberry-de-Valleyfield.
On September 5, 2006, the Appellant signed a solemn affirmation, before a
Commissioner for Oaths, stating that she had signed the lease of a dwelling at
that address and that Igal Ravimi lived there. During her testimony, the Appellant
explained that she signed this solemn affirmation to enable the father of her
daughter to obtain his Canadian immigration papers, and that he continued to
use that address following their separation, and refused to provide the
Appellant with any other address. In his testimony, Igal Ravimi said that
he was still married and that he lived with his wife at that address.
[9]
According to the
Appellant's testimony, the couple's problems began when her spouse's brother
came to live with them in July 2002. From then onward, the Appellant's
spouse was increasingly absent, without giving information about his comings
and goings or place of employment. In order to reach her spouse, she had to
call him on his cell phone. As of 2002, Mr. Ravimi no longer contributed to the
household expenses, except occasionally for groceries and certain expenses related
to their daughter. In August 2005, the Appellant demanded that her spouse
and his brother leave and take all their personal effects with them (clothes,
tools, bicycles, etc.). The Appellant's testimony concerning the
couple's separation was confirmed by a letter dated February 22, 2008 by Andrée
Bédard, a friend who knew the family well (Exhibit A-1). The Appellant also
explained that she had not commenced divorce proceedings because of the cost
and in order not to interfere with her ex-spouse's immigration process. Despite
their separation, the Appellant has ended their relationship, because she does
not want to deprive the father of access to his daughter. She preferred to have
the father come to see his daughter at the house, rather than have him leave
with the daughter and not tell the Appellant where he was taking her. The Appellant
also admits that she had conjugal relations with Mr. Ravimi on occasions
where he came to see his daughter at her home.
[10]
As stated above, the
only question to be decided in the instant case is whether the spouses lived
separately owing to a breakdown in their marriage. According to the case law,
each case must be assessed having regard to its particular objective facts.
[11]
In my opinion, the Appellant
has established on a balance of probabilities that she has been living separately
from her spouse since August 2005. Among the relevant factors that have been taken
into consideration, the following are worth mentioning:
(a)
The ex-husband was
seeing another woman without telling the Appellant; this was confirmed by
Ms. Bédard in her letter dated February 22, 2008.
(b)
The Appellant looked
after her children's medical care alone (pediatrician's visits, medication
purchases, etc.)
(c)
The Appellant looked
after her children's education alone (registration, transportation,
parent-teacher meetings, etc.)
(d)
The Appellant took care
of household maintenance and expenses alone (rent, power, telephone) and also
looked after laundry, while her ex‑spouse looked after meal preparation
when he was at the residence)
(e)
The Appellant has not
seen her ex-spouse's relatives for more than three years, and they no longer
call the residence when they wish to speak with her ex-spouse.
(f)
The Appellant has had
her ex-spouse's mail held at the local post office.
(g)
The Appellant uses her
own bank account but was unable to close her end of the joint bank account that
she had opened with her ex-spouse because she had signed for his car.
[12]
In light of the
foregoing, I find that the Appellant has met her burden of proof.
The appeal is therefore allowed.
Signed at Ottawa,
Canada, this 14th day of May 2008.
"Réal Favreau"
Translation certified
true
on this 9th day of
July 2008.
Brian McCordick,
Translator
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