Date:
20010601
Dockets:
2000-2529-IT-I,
2000-2531-IT-I
BETWEEN:
CLAIRE
ARCHAMBAULT GRABLY,
RAFAEL
GRABLY,
Appellants,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Judgment
Lamarre
Proulx, J.T.C.C.
[1]
These appeals were heard on common evidence under the informal
procedure. They are appeals for 1996 and 1997 in the case of
Mrs. Archambault Grably and for 1996 to 1998 in the
case of Mr. Grably. During the years at issue,
Mrs. Archambault Grably claimed child tax benefits and
the equivalent-to-married tax credit. Mr. Grably
claimed deductions for support payments.
[2]
The issue is whether the appellants were living separate and
apart during the years at issue.
[3]
In making the reassessments, the Minister of National Revenue
("the Minister") relied on the facts set out in
paragraph 8 of each Reply to the Notice of Appeal ("the
Reply"). Since the facts relied on are similar, I will
reproduce paragraph 8 of the Reply concerning
Mrs. Archambault Grably, which reads as
follows:
[TRANSLATION]
(a)
the appellant and Rafael Grably have four children
together:
(i)
Mélanie, who was born in April 1976;
(ii)
Olivia, who was born in September 1977;
(iii)
Lydia, who was born in May 1982; and
(iv)
Mélissa, who was born in April 1984;
(b)
during the years at issue, the appellant stated in her tax
returns that she was living at 192 Rue Bretagne in Laval, the
home of her parents;
(c)
192 Rue Bretagne in Laval is the address of the appellant's
parents, Thérèse Paquette and
Gérard Archambault;
(d)
the Minister is of the opinion that, during the years at issue,
the appellant lived at 5250 Rue Chabanel in Laval with her
spouse, Rafael Grably:
(i)
although the appellant alleges that she has been separated from
her spouse since December 5, 1992:
(a)
the property assessment for the 1999 fiscal year indicates that
she and Rafael Grably were still co-owners of the family
residence on Rue Chabanel in Laval; and
(b)
a letter from the Régie des rentes du Québec dated
November 11, 1999, was sent to her at the address on Rue Chabanel
in Laval;
(ii)
the appellant said that her daughters Olivia and Mélissa
lived with her:
(a)
the address indicated on the T4s issued for Olivia by Medicop
inc. for 1996 and 1997 was the property on Rue Chabanel in
Laval; and
(b)
the report cards of Mélissa from the Laurenval school
board indicated that she lived on Rue Chabanel in Laval during
the years at issue;
(e)
the Minister considered that the appellant and Rafael Grably were
living together in the property at 5250 Rue Chabanel in Laval
during the 1996 and 1997 taxation years, which resulted in the
following changes:
(i)
the appellant was denied the equivalent-to-married
tax credit for the 1996 and 1997 taxation years; and
(ii)
in calculating the child tax benefits for the 1996 and 1997 base
taxation years, taking the net family income into account reduced
the annual child tax benefit amount to zero:
1996
1997
appellant
12,702
6,167
Rafael
Grably
68,261
69,117
80,963
75,344
[4]
As can be seen, the position of the Minister is that the
appellants were not living separate and apart. He did not present
any argument based on the spouses' written agreement, which
was nonetheless filed as Exhibit A-2. According to the
agreement, the appellants had been married since September 1,
1974, and had separated on December 5, 1992. The father took
custody of Mélanie and Lydia, while the mother took
custody of Olivia and Mélissa. They agreed that
Mrs. Archambault Grably would be paid $1,100 a month in
support for herself and the two children in her
custody.
[5]
Both appellants admitted that they owned the house located at
5250 Chabanel.
[6]
Mr. Grably explained that the report cards of Mélissa
were sent to 5250 Chabanel because he paid some of her
school fees. He also explained that it had been necessary to give
5250 Chabanel as Mélissa's address because he and
Mrs. Archambault Grably wanted the two sisters to go to
the same school. Mr. Grably said that he and
Mrs. Archambault Grably have not lived as husband and
wife since their separation and that this situation has continued
even though they are now living under the same roof.
Mrs. Archambault Grably came back to live in the house
on Rue Chabanel the second week of May 1999.
[7]
Mrs. Archambault Grably admitted subparagraphs 8(a) to
(c) of the Reply.
[8]
With regard to statement 8(d)(ii)(a) in the Reply,
Mrs. Archambault Grably explained that her daughter
Olivia lived with her or with Mr. Grably during those years,
which were not easy ones between her and her daughter. She gave
the same reason that Mr. Grably had given to explain why,
for school purposes, Mélissa continued to give 5250
Chabanel as her address. Moreover,
Mrs. Archambault Grably worked at the Sir Wilfrid Laurier school board, which was the
same school board. Mélissa went to school by bus or was
given a lift by Mrs. Archambault Grably's father or brother. She said that she does not have any
credit cards or a driver's licence.
[9]
Mrs. Archambault Grably filed her statements of
remuneration paid or T4s as Exhibit A-3. They indicate her
address as being 192 Bretagne for 1996 and 1997; the same address
is found on the records of employment dated June 30, 1998,
and July 12, 1999, and on a statement of employment
insurance benefits for 1997. Exhibit A-4 is a bank document
issued in 1999 stating that
Mrs. Archambault Grably's address had been
192 Bretagne since August 21, 1993. Exhibit A-5
is a letter sent to Mélissa in 1994 with her social
insurance card. The address given is
192 Bretagne.
[10]
Mrs. Archambault Grably explained that she lived with
her daughters in her parents' basement. She looked after her
father, who had major health problems. She was the one who looked
after everything, since her mother was unable to do so. She said
that she did not drive the car but that her father could still
drive. Either she accompanied him to his medical appointments by
herself or her brother took them. She did not have a telephone.
She used her parents' telephone and could also use their
television set.
[11]
Following the hearing, Mrs. Archambault Grably
submitted a letter from the Régie de l'assurance-maladie du
Québec stating that her address and the address of her
daughter Mélissa had been 192 Chemin de la Bretagne in
Laval since August 17, 1993. Counsel for the respondent chose not
to make any comments.
Conclusion
[12] I must
take into account the fact that the appellants testified under
oath and stated that they lived at different addresses during the
years in issue. Their assertions are confirmed by important
documents. Co-ownership of property alone cannot be conclusive.
The parents gave a plausible explanation concerning the address
indicated in Mélissa's report cards. In view of the
testimony and documentary evidence, I accept the appellants'
assertions.
[13]
The appeals are allowed without
costs.
Signed at
Ottawa, Canada, this 1st day of June 2001.
J.T.C.C.
[OFFICIAL
ENGLISH TRANSLATION]
2000-2529(IT)I
BETWEEN:
CLAIRE
ARCHAMBAULT GRABLY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeals
heard on common evidence with the appeals of
Rafael Grably (2000-2531(IT)I) on May 1,
2001, at Montréal, Quebec, by
the
Honourable Judge Louise Lamarre Proulx
Appearances
For the
Appellant:
The Appellant herself
Counsel
for the
Respondent:
Ninette Singoye
JUDGMENT
The appeals from the assessments made under the Income Tax
Act for the 1996 and 1997 taxation years are allowed, without
costs, in accordance with the attached Reasons for
Judgment.
Signed at
Ottawa, Canada, this 1st day of June 2001.
J.T.C.C.
[OFFICIAL
ENGLISH TRANSLATION]
2000-2531(IT)I
BETWEEN:
RAFAEL
GRABLY,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Appeals
heard on common evidence with the appeals of
Claire Archambault Grably
(2000-2529(IT)I)
on May 1,
2001, at Montréal, Quebec, by
the
Honourable Judge Louise Lamarre Proulx
Appearances
For the
Appellant:
The Appellant himself
Counsel
for the
Respondent:
Ninette Singoye
JUDGMENT
The appeals from the assessments made under the Income Tax
Act for the 1996, 1997 and 1998 taxation years are allowed,
without costs, in accordance with the attached Reasons for
Judgment.
Signed at
Ottawa, Canada, this 1st day of June 2001.
J.T.C.C.
[OFFICIAL
ENGLISH TRANSLATION]
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