Date: 20010423
Docket: 2000-581-IT-I; 2000-2030-IT-I
BETWEEN:
ALI ENOW ALI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
For the Appellant: The Appellant himself
Counsel for the Respondent: Jenna Clark
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Toronto, Ontario, on
January 12, 2001)
McArthur J.
[1]
For the 1995, 1996 and 1997 taxation years, the appeals are
identical but for the amounts in issue. The Appellant seeks to
deduct alimony, or support payments, in the amounts of $5,950,
$5,985 and $6,500 in each year, respectively. In addition, he was
denied his claim of $5,380 as an
equivalent-to-spousal amount in the calculation of
the non-refundable tax credit. The issue boils down to
whether he in fact sent money to his wife, mother, and sister who
were all living in Kenya during the relevant years.
[2]
The Appellant was married to Sacdiyo Adan Ahmned in 1994 and
there is no dispute in this regard. However, to highlight
cultural differences from what we are used to in this country, I
will give some details. The Appellant has never met his wife
although they have been married for six years. It was an arranged
marriage completed over the telephone; yet the Appellant has
satisfied the Minister of National Revenue, through a certificate
issued out of his native country, that he was indeed married. He
immigrated to Canada in 1991 from Somalia and is now a Canadian
Citizen. His evidence was translated by a Somalian interpreter.
He worked in a manufacturer's warehouse earning about $25,000
annually during the relevant years. His mother, sister, and wife
lived in a refugee camp in Kenya having left neighbouring Somalia
during a civil war. The Appellant spoke of the Moslem culture of
giving and said he felt obligated to help his family left behind.
His marriage took place while he was in Canada and his wife in
Africa. Up to now, he has been unable to save sufficient funds to
go to Kenya for a wedding ceremony but anticipates that he will
be in a position to do so within a year.
[3]
Again, the issue is not whether the Appellant is married but
whether he is entitled to claim a tax credit pursuant to
paragraph 118(1)(a) of the Income Tax Act which
states:
118(1) For the purpose of computing
the tax payable under this Part by an individual for a taxation
year, there may be deducted an amount determined by the
formula
...
where
(a)
in the case of an individual who at any time in the year is a
married person or a person who is in a common-law partnership who
supports the individual's spouse or common-law partner
...
[4]
The Minister's assumptions of fact to which the Appellant
agrees are as follows:
(a)
at all material times, the Appellant was married to Sacdiyo Adan
Ahmned;
(b)
at all material times, Sacdiyo was a non-resident of
Canada;
(c)
in the 1995 and 1996 taxation years, the Appellant was not
because of a breakdown of his marriage, living separate and apart
from his spouse at the end of the year and for a period of at
least 90 days beginning in the year;
(d)
there is no decree, order or judgment of a competent tribunal
that provides for the payment of the Amounts;
(e)
the Amounts were not paid pursuant to a decree, order, or
judgment of a competent tribunal as alimony or other allowance
payable on a periodic basis for the maintenance of the recipient
thereof, children of the marriage, or both the recipient and the
children of the marriage;
The Minister acknowledges that the Appellant is a married
person but denies that he supported his spouse, and that becomes
the issue in these appeals.
[5]
It is clear that the Appellant is not entitled to deduct the
amounts claimed for alimony and support. He does not contest
this, and I take it that it was an error in his Notice of Appeal.
He does state that he supported his wife, mother, and sister. He
submitted an affidavit wherein his wife purports to swear that
she received from him the amounts of approximately $6,000 per
year in Canadian funds during the three years under appeal. The
affidavit entered as Exhibit A-1 appears to be sworn by a notary
public in Nairobi. I agree with the Respondent that it should be
given little weight because the Appellant's wife cannot be
cross-examined.
[6]
The Appellant appeared to be a credible witness despite careful
cross-examination. He would have made my decision a lot
easier had he called witnesses to corroborate his evidence with
respect to the cultural differences from his country and to
support his evidence that he sent money in cash to his wife and
family by way of carriers within his community. He did submit
some supporting documentation to include two passports entered as
Exhibit A-2 of these couriers who appear to be well-travelled,
but these documents, again, were hearsay. He stated that his wife
and mother are illiterate and only acknowledged receipt of funds
from him by an occasional telephone call.
[7]
In addition, the Appellant presented his account statement from
the Royal Bank of Canada, being Exhibit A-3, wherein on December
1, 1997, he had a credit balance of $6,326 with withdrawals of
$500 on December 16 and $1,200 on December 17 which amounts he
stated were sent to his wife and mother. While this case is close
to the line, I accept that evidence.
[8]
In cross-examination, the Appellant stated that the United
Nations provides food and shelter for his wife, mother and sister
while in the refugee camp in Kenya; yet I accept that the
Appellant did support his wife during the relevant years and is
not living separate and apart by reason of a breakdown in the
marriage. Although I accept that he sent some money in each of
the three years for the support of his wife, I find the amount is
not approximately $6,000 per year but rather more in the amount
of $2,000. In conclusion, the Appellant is entitled to claim that
tax credit pursuant to paragraph 118(1)(a) of the
Act in respect of his wife for the 1995, 1996 and 1997
taxation years and in all other respects, the Appellant's
appeals are dismissed.
Signed at Ottawa, Canada, this 23rd day of April, 2001.
"C.H. McArthur"
J.T.C.C.
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