[OFFICIAL ENGLISH TRANSLATION]
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Citation: 2004TCC538
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Date: 20040817
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Docket: 2004-186(IT)I
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BETWEEN:
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CATHERINE DROLET,
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Appellant,
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And
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Bédard J.
[1] In making a redetermination of the
Canada Child Tax Benefit on February 20, 2003, the Minister
of National Revenue (the "Minister") revised the
Appellant's child tax benefits downward in respect of the
2000 base year. The Minister in fact established an overpayment
of $2,839.15.
[2] In making and confirming the
redetermination dated February 20, 2003, in respect of the
2000 base year, the Minister assumed the same facts:
[TRANSLATION]
(a) by letter dated
October 31, 2002, the Minister sent the Appellant a
questionnaire to be completed in order to determine her marital
status during the period from January 1 to December 31,
2000;
(b) that check was
made necessary since the Minister's files showed that the
Appellant was a single person at December 31, 2000, whereas
the address of Steve Morin corresponded to that of the
Appellant;
(c) on
November 13, 2002, the Appellant, in response to the
questionnaire dated October 31, 2002, provided the Minister
with the following information:
(i) the
Appellant stated that she was a de facto spouse from January to
June 2000;
(ii) the Appellant
considered herself single during the period from July to November
2000;
(iii) the Appellant said
she was a de facto spouse in December 2000, adding that
Steve Morin had come to live with her at the start of that
month;
(iv) during the period
from July to November 2000, the Appellant told us that
Steve Morin lived at 2805 Boul. Henri-Bourassa
Est, Apartment 405;
(v) according to the
lease submitted, the Appellant and Steve Morin lived in an
apartment located at 4310 45th Street in the City of
Saint-Léonard prior to July 2000;
(vi) according to that
same lease, the Appellant alone rented the apartment at
4161 43rd Street, Apartment 3, in the Town of
Saint-Michel, starting in July 2000 since Steve Morin,
with the landlord's consent, ceased to assume any
responsibility with respect to that apartment;
(d) no document was
provided showing that the Appellant and Steve Morin were
living in separate dwellings at December 31, 2000;
(e) on
January 8, 2003, the Minister informed the Appellant in
writing that her marital status would be amended to that of de
facto spouse as of December 31, 2000;
(f) the
Minister considered the family income for the base year in issue
in recalculating the Appellant's child tax benefits.
[3] The only issue in the instant case
is whether the Appellant and Steve Morin were living in a de
facto union on December 31, 2000.
Preliminary Comments
[4] The Appellant was the only person
who testified. Although he had been called by the respondent as a
witness, Mr. Morin did not come and testify. It is
appropriate to recall that, in response to question 8 on the
questionnaire dated October 31, 2002
(Exhibit I-1), the Appellant told the Minister that
she was the de facto spouse of Mr. Morin and that she was
living with him. She made the same statement in her letter of
November 13, 2002 (Exhibit I-2).
Analysis
[5] It appears from the
Appellant's testimony that:
(i) Mr. Morin was living
with the Appellant only a few days a week in December 2000 and at
the homes of various friends the rest of the time since he had no
fixed residence;
(ii) at all times in December
2000, Mr. Morin's personal property was at the
Appellant's residence and he received his mail at that
location;
(iii) starting on January 1,
2001, the Appellant and Mr. Morin lived in a de facto
union;
(iv) in explaining her answer to
question 8 on the questionnaire dated October 31, 2002
(Exhibit I-1) and her statement in the letter of
November 13, 2002, (Exhibit I-2) that
Mr. Morin was her de facto spouse in December 2001 and that
they had lived together during that month, she said that, in her
mind, the expression "de facto spouse" meant having a
boyfriend and that, in any case, she had not really understood
the meaning of that expression.
[6] In the instant case, the Appellant
stated in writing on two occasions that, in December 2000,
Mr. Morin was her de facto spouse and that they were living
together. On this point, the Appellant provided explanations that
were far from convincing. It is hard to understand how the
Appellant, who appears to be an intelligent person, could have
made such statements without further considering their
consequences. This is not a complex tax question, and it is
surprising that the Appellant could have agreed so readily to
present herself as Mr. Morin's de facto spouse if she
was convinced that was not the case.
[7] In view of Mr. Morin's
absence from the hearing, it is appropriate in the circumstances
to recall that the Court may draw a negative inference from that
absence. The failure of a party or witness to give evidence which
it was in the power of the party or witness to give and by which
the facts might have been elucidated justifies the Court in
drawing the inference that the party or witness would have been
unfavourable to the party to whom the failure was attributed. The
Court would also have liked to hear Mr. Morin's friends
who housed him in December 2000.
[8] In the circumstances of the
instant case, the onus was on the Appellant to show on a balance
of probabilities that she was not living with Mr. Morin in a
conjugal relationship in December 2000. I find I cannot conclude
that that was the case on the evidence brought by the Appellant.
On the contrary, I find that the whole of the evidence described
above leads me to conclude that such a relationship existed
between the Appellant and Mr. Morin in December 2000. I
would add that the facts adduced in evidence by the Appellant are
insufficient for me to conclude otherwise.
[9] As a consequence of the above, the
appeal is dismissed.
Signed at Ottawa, Canada, this 17th day of August 2004.
Bédard J.
Certified true translation
Colette Dupuis-Beaulne
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