|
Citation: 2004TCC382
|
|
Date: 20040519
|
|
Docket: 2003-2723(IT)I
|
|
BETWEEN:
|
|
ARMIN NERBAS,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Rip, J.
[1] Armin Nerbas appeals a
determination by the Minister of National Revenue that he was not
the "eligible individual" within the meaning of
section 122.6 of the Income Tax Act
("Act") in respect of his daughter
Stevie Nerbas ("Stevie"), a "qualified
dependent" [within the meaning of section 122.6],
during the period December 27, 2001 to April 30, 2002 and is thus
not eligible to receive the Canada Child Tax Benefit
("C.T.B.") claimed by him.
[2] Mr. Nerbas, Coreen Tantrum
(Stevie's mother) and Stevie testified at trial. The facts
set forth by Mr. Nerbas and Ms. Tantrum were contradictory.
Stevie, who was 17 years of age at the time of trial, testified
in support of her father. Obviously, if I accept the evidence of
Mr. Nerbas, I must find that Ms. Tantrum's evidence was
a collection of lies. And if I accept Ms. Tantrum's
evidence, it must follow that Mr. Nerbas lied. As far as Stevie
is concerned, the evidence before me strongly suggests that in
the past eight years or so, that is, since her parents separated
and entered into an ongoing series of litigation, she has
sometimes favoured her father and at other times, her mother. Mr.
Nerbas and Ms. Tantrum have two other daughters who, thankfully,
did not appear at trial.
[3] On November 20, 2000 an Order
issued by the Supreme Court of British Columbia varied an
earlier Order of January 13, 1999 to provide, among other things,
that Stevie ordinarily reside with Mr. Nerbas and that Ms.
Tantrum have liberal access to Stevie. Ms. Tantrum's access
to Stevie included "half of the Christmas
holidays", when the other two children are not with
Mr. Nerbas. Both parents retained joint guardianship and
custody of Stevie.
[4] The November 20, 2000 Order the
Supreme Court was itself varied on July 10, 2002 so that Stevie
ordinarily reside with Ms. Tantrum. The Order of
July 10, 2002 also provided that Mr. Nerbas pay monthly
to Ms. Tantrum for support of the three children a sum of money
commencing April 1, 2002.
[5] So it was, according to Mr.
Nerbas, that on December 27, 2001 Stevie went to her mother's
home for one-half of the Christmas holidays and returned to his
home on January 2, 2002. Mr. Nerbas recalled that during the
Thanksgiving Day weekend in 2000[1], Stevie telephoned her father to tell
him that she was thrown out of her mother's house. He said
that he told Stevie that he would pick her up and that she would
reside with him from that time on. He insisted he was
Stevie's caregiver and took her to school (since he lived in
a rural area) if she did not take the bus to school.
[6] Mr. Nerbas claims he cared for
Stevie at his home from January 2, 2002 to April 1, 2002. During
this time, he said, he allowed Stevie access to her mother in
excess of that provided in any Court Order. He stated that in
April 2002, Stevie wanted more time with her mother and went to
live with Ms. Tantrum. However, Mr. Nerbas declared, he
continued to maintain a room in his home for Stevie and continued
to be the parent who her school would contact if necessary.
Stevie's pets were at his home. It was only in July 2002 when
Stevie decided to stay "primarily" with her mother, he
said. [The Court Order of July 10, 2002 provided that Stevie
shall ordinarily reside "with Ms. Tantrum".]
[7] Mr. Nerbas was shown a
questionnaire sent to him by Canada Customs and Revenue Agency
("CCRA"). He returned the completed questionnaire to
CCRA on or about December 19, 2002. Nr. Nerbas stated that Stevie
lived with him during the period under review and with no one
else. "However", he explained, "Stevie had access
to her mother's home Tuesdays after school spending the
evening overnight and every other weekend as per the Court Order.
As per my agreement with Stevie she was allowed to stay extra
times at her mother's when she decided." He also stated
that "it was not clear to me that the living arrangements
had been changed until the Court date in July of 2002".
[8] Mr. Nerbas also informed the CCRA
that:
As of Dec. 27, 2001 Stevie went to her mothers [sic] as
part of the Court Order alternating holidays. At no time was I
ever informed by Stevie and her mother that this was not her
primary residence. As I had maintained Stevies [sic]
housing, clothing, school supplies, ect. [sic] until July
of 2002 when a new Court Order was made. Until that time Stevie
was still spending a considerable amount of time at my residence
and participating in family activities.
[9] Mr. Nerbas declared that
"everything was structured by Court Order" and it was
not clear to him if he had to maintain living accommodations for
Stevie at his home.
[10] According to Ms. Tantrum when Stevie
arrived at her home on December 27, 2001, Stevie said she
was "coming home". Ms. Tantrum stated Stevie had
not spoken to her father about living with her mother and told
her to get in touch with him to inform him about her intentions.
On January 9, 2002, Stevie visited her father for the first time
after moving to her mother's home.
[11] Counsel for the Crown produced an
affidavit sworn by Mr. Nerbas on July 10, 2002. Apparently
Ms. Tantrum's boyfriend had assaulted Ms. Tantrum and Stevie
on June 5, 2002 and those incidents came to Mr. Nerbas'
attention on July 9, he recalled, the night before the B.C.
Supreme Court was to hear the application and
cross-application of Ms. Tantrum and Mr. Nerbas,
respectively, on July 10, 2002. Mr. Nerbas attempted to
have the hearing adjourned in order to determine details of the
assault; his request for the adjournment was denied. In his
affidavit in support of the adjournment, Mr. Nerbas stated
that:
On the night of that incident, Wednesday June 5, 2002, the
children, Shawnie and Shelby were with me. However, Stevie was at
the Plaintiff's home. Stevie has not chosen to visit with me
for approximately two months. Prior to that, between February and
April, 2002 she would visit during my access visits with Shawnie
and Shelby.
[12] Mr. Nerbas testified that the affidavit
is "misworded". In short, he refutes his affidavit. The
affidavit, he complained, was drafted by his lawyer's
assistant, and was prepared in a rush. When he read the
affidavit, Mr. Nerbas thought it pertained to the assault. He was
upset, he said, and erred in signing the affidavit. At trial he
insisted Stevie was with him during January, February and
March 2002. In reply to respondent's counsel, Mr. Nerbas
acknowledged he continues to retain the lawyer who is responsible
for the drafting of the affidavit and who represented him at the
hearing of the motion on July 10. His counsel was not called as a
witness.
[13] Ms. Tantrum recalled that at the end of
January 2002 she attended at the Supreme Court of British
Columbia in Chilliwack to obtain an information booklet on how to
represent one's self in a court proceeding. On her home
computer she typed a Notice of Motion for an Order that Stevie
reside with her. She suggested the Motion be heard on any of
February 25, March 4 or March 11, 2002. Ms. Tantrum had
attempted to have the Notice served on Mr. Nerbas by her
boyfriend, at the time, and his stepfather; this effort
culminated in police intervention and, upon advice, she then
engaged the services of a process server. The Notice was served
on February 15, 2002.
[14] On February 25, 2002, Mr. Nerbas'
lawyer sent a packet of papers to Ms. Tantrum's home.
The documents, in her view, indicated Stevie was living with Mr.
Nerbas. Ms. Tantrum retained the services of a lawyer. The Notice
of Motion was filed with the Court on July 5, 2002, returnable on
July 10, 2002.
[15] In the affidavit in support of her
motion dated January 30, 2002, Ms. Tantrum deposed that
Stevie resided with her since December 28, 2001 and that since
November 20, 2000 she continues to care for Stevie. In a second
affidavit, dated April 11, 2002, Ms. Tantrum set out a
schedule of Stevie's visits with her father since December
21, 2001. The dates were taken from the calendar she maintained
which describes the days Stevie was with her and the days she was
with Mr. Nerbas. In the second affidavit Ms. Tantrum
concluded that:
Stevie does not want to become involved in the dispute between
the Defendant and I. She is afraid that if she is forced into the
dispute and has to tell the Court what her current living
arrangements are, there will be consequences for her from the
Defendant. I have asked Stevie if she would object to being
interviewed by a person appointed by the Court, and she said that
she would object and would prefer to be left out of this
altogether.
[16] Ms. Tantrum produced a copy of the
calendar of Stevie's living arrangements for the months of
January, February, March, April, May and June 2002. On the
calendar she made notes about access, notes to herself and
highlighted important dates. She testified she maintained a
calendar due to "ongoing litigation" since November
1996. She said she found the calendar useful for confirming dates
she could not remember. When days on the calendar are blank, she
explained, Stevie was with her, where a day has a note, Stevie
was with her father. The only doubt as to where Stevie was is
during January 18 to 20, 2002, inclusive. The
calendar establishes that except for March, when Stevie appears
to have spent equal time with both parents, she resided with her
mother. Ms. Tantrum testified that during January and February
there were many "back and forth conversations" between
Stevie and her father while Stevie was at her home.
[17] In the meantime, during the early part
of 2002, Stevie continued to see her father and visit him with
her younger sisters, although, according to Ms. Tantrum,
Stevie had more access days with her father than did her sisters.
Again according to Ms. Tantrum, Stevie was having difficulty
communicating with Mr. Nerbas and "by the end of March
[their relationship] was almost non-existent".
[18] Stevie's evidence was that her
mother told her to sign an affidavit on June 26, 2002 in
which she deposed that:
I have been living with my mother at the above address since
December 27th, 2001. Prior to that, I had been
residing with my father. I thought about my decision to move back
with my mother for approximately two months, and having finally
decided to do so, I then called my father (a day or two after
December 27th) to inform him of my decision.
[19] At trial, Stevie said she did not call
her father as stated in the affidavit. She said the affidavit was
brought to her in a lawyer's reception room and she signed
it. Ms. Tantrum stated that the affidavit was read to Stevie
and that Stevie signed it in the lawyer's office.
[20] In a note written at her father's
request and in his home on or about February 20, 2003 Stevie
stated that she:
did not move from my dad's (Armin Nerbas) house to my
mom's (Cory Tantrum) house offically [sic] until April
2002. The time from Dec. 2001 to April 2002 that I was spending
at my mom's house was the prearanged [sic] X-mas and
spring breaks.
[21] In cross examination Stevie stated that
she has been residing at her father's home since "a
couple of weeks ago". Stevie confirmed that her parents do
not talk to each other.
[22] Stevie was present during the evidence
portion of the trial. At the suggestion of Crown counsel I asked
Stevie to leave the Courtroom during argument since credibility
of the parents would determine the result of the trial. It would
serve no purpose if she were present during this debate. I
noticed during the trial that Stevie and her mother sat at
opposite ends of the courtroom, never acknowledging the other. I
also observed Stevie smiling and nodding at portion's of her
mother's testimony that she did not agree with. That Stevie
was in Court during the contradictory testimony of her parents is
sad and served no real purpose. Mr. Nerbas acknowledged that
Stevie moved from one parent to another, depending on the
relationship with the particular parent. When Stevie had a
disagreement or argument with one parent, she moved to the other
parent's home. Stevie's living arrangements were not
influenced by any court order in effect during the period in
question.
[23] It is obvious that at time of trial
Stevie and her mother were in one of their estranged stages and
Mr. Nerbas was the beneficiary.
[24] Because of the relationship Stevie had
with her parents, moving from one parent's home to the
other's when the relationship with the former became strained
and the fact at the time of trial she was residing with her
father, I do not give any weight to Stevie's testimony. Had
the trial taken place at some other time, when the relationship
with her father was in issue, I am confident that her testimony
would have favoured her mother's position.
[25] As between Ms. Tantrum and Mr. Nerbas,
I prefer the evidence of Ms. Tantrum. She maintained a
calendar which sets out each day Stevie resided, or spent the
day, at her home and the home of Mr. Nerbas during time in issue.
There is no evidence before me that she erred in stating when
Stevie lived with her and when Stevie visited her father during
the period under review. Mr. Nerbas did not have anything
except his memory as to the days Stevie spent with him. And his
memory was fully self-serving. Also, it appears that
Mr. Nerbas considered that Stevie resided with him, whether
or not she did, if a Court Order required Stevie to reside with
him during a given time. None of Mr. Nerbas, Ms. Tantrum or
Stevie paid much attention to any Court Order concerning with
whom Stevie was to reside. Rather, Stevie's living
arrangements depended on which parent she was getting along with
at the time.
[26] Also, I do not accept the evidence of
Mr. Nerbas and Stevie that their respective affidavits of July
10, 2002 and June 26, 2002 contain errors of fact. Mr.
Nerbas' excuse for signing the affidavit in error is
absolutely self-serving. As far as Stevie's reasons for
signing are concerned, I believe, based on my observations of Mr.
Nerbas and Stevie, that she was unduly influenced by her father
in writing the note of February 20, 2003.
[27] In the circumstances I accept the
evidence of Ms. Tantrum. Stevie lived at her mother's
residence during the period December 27, 2001 to April 30, 2002.
The appellant was not the eligible individual for purposes of the
child tax benefit. Ms. Tantrum was the primary caregiver of
Stevie during this time. The appeal is dismissed.
Signed at Ottawa, Canada, this 19th day of May,
2004.
Rip, J.
Email this Content