Ahmed v. The Queen, docket 1999-2518-IT-I (Informal Procedure)

Date: 20000616

Docket: 1999-2518-IT-I

BETWEEN:

SADAQ AHMED,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Agent for the Appellant: Gerald Grupp

Agent for the Respondent: Brent Cuddy (Student-at-law)

____________________________________________________________________

Reasons for Judgment

(Delivered orally from the bench at Toronto, Ontario, on March 8, 2000 and later revised at Ottawa, Ontario, on June 16, 2000)

Mogan J.T.C.C.

[1] This is an appeal for the 1996 and 1997 taxation years. In each of those years, the Appellant deducted in computing income the amount $4,950 which was identified in his income tax return as alimony or maintenance. The precise same amount was deducted in each year. The Appellant claims that the amounts deducted were paid to his wife and mother (residing in the Republic of Kenya) as some kind of support. In each year, the Appellant also claimed a non-refundable tax credit in the spousal amount of $5,380.

[2] By notices of reassessment issued in August and November 1998, the Minister of National Revenue disallowed the deduction of the $4,950 amounts in computing income, and also disallowed the spousal non-refundable tax credits. The Appellant has appealed to this Court from those reassessments asking the Court to allow the amounts deducted and the non-refundable tax credits. The Appellant has elected the informal procedure.

[3] The basic issues are whether the Appellant was married in 1996 and 1997 and, if so, whether he sent any money to his wife and his mother in those years. When this case was heard at Toronto on March 8, 2000, I delivered brief reasons from the bench expressing concern about the Appellant's credibility; dismissing the appeal for 1997; but granting partial relief for 1996. Upon further reflection, and for the reasons set out below, I have decided to grant no relief for 1996 and to dismiss the appeals for both years. I am permitted to depart from my earlier decision delivered orally from the bench in accordance with the decision of the Federal Court of Appeal in Shairp v. The Queen, 87 DTC 5206.

[4] The facts of this case are unusual to say the least. The Appellant was a citizen of Somalia. He left Somalia in 1989 at the age of 19 and came to Canada in 1990 as a convention refugee. He has resided in Canada ever since his arrival here in 1990 and has never left Canada at any time for any reason.

[5] The Appellant described a marriage that he entered into under Islamic law. Because that marriage is so different from marriage as it is traditionally known in Canada, I shall describe how that marriage took place and shall also refer to some evidence on Islamic law. According to the Appellant, he married a woman (Maryan Hussein Yusuf who I shall refer to as "Maryan") from Somalia in February 1995 on a day when he was in Canada and she was in Kenya. There was a telephone connection between him and Maryan in circumstances where there were two witnesses in attendance upon the Appellant here in Canada and there were two other witnesses in attendance upon Maryan in Kenya.

[6] Before the Appellant testified, a witness was produced, Mr. Aslam Nakhuda, who was identified as an imam of the Islamic religion. An imam is a leader of prayers in a mosque who, I think, may be compared to a clergyman in the Christian religion. He was presented to the Court as an expert witness to give expert testimony on how a marriage might be effected under Islamic law.

[7] The report of a proposed expert witness was not filed and served under Rule 7 of the Rules of Informal Procedure, and the admissibility of his evidence was challenged by counsel for the Respondent on the basis that he did not have adequate notice of the opinion to be expressed. Counsel argued that he did not have an opportunity to consult an independent expert on the Appellant's proposed expert evidence or to prepare for cross-examination. Notwithstanding the objections of the Respondent, I permitted Mr. Aslam Nakhuda to testify but cautioned the Appellant's agent that I would give limited weight to the opinion.

[8] In a nutshell, the imam said that no clergy-type person was necessary for a marriage under Islamic law. The only thing that was necessary was for the man and woman (if they were both of the Islamic faith) to be together in the presence of two Islamic witnesses. Alternatively, he said that a marriage could be effected if the man and woman were separated by continents (like North America and Africa in this case) but were connected by telephone and if each one was attended by two Islamic witnesses. If the witnesses were present and could attest to the fact that one party, the man or the woman, offered to marry the other party and the marriage status was accepted by the other party, marriage would exist and they would be regarded as married. That was the substance of the expert testimony.

[9] The Respondent clearly did not have adequate notice of the proposed expert evidence or adequate opportunity to consult its own expert or to prepare for cross-examination. I will therefore recognize the opinion as probably that of an expert but will attach little weight to it. Even if such a transaction is accepted as a marriage under Islamic law, there is a separate question of fact as to whether such a marriage did in fact take place. Also, there is a question as to whether such a marriage would be recognized under Ontario law when one of the parties was in Ontario at the relevant time.

[10] I have serious reservations about the credibility of the Appellant. There are many things about this case that do not ring true. I will summarize some of those things.

[11] The Appellant said that this was an arranged marriage. It was arranged by his father and by Maryan's father. In accordance with that arrangement, he got on the phone in February 1995 in the presence of two witnesses, one named Abdullahi (a relative of the woman) and another man named Ali Enow Ali who was a friend of the Appellant. Neither of these witnesses could come to court according to the Appellant because he does not know where Ali Enow Ali is; and the other witness (the relative of the woman) went back to Somalia, but the Appellant says he has since heard that he (the other witness) is now in the U.S.A. Therefore, the prime independent sources of evidence to this marriage were not available to the Court.

[12] The Appellant stated that the appropriate words were said in the presence of his two witnesses; that the appropriate words were said by Maryan on the other end of the telephone in the presence of her two witnesses (her father and the Appellant's father); and therefore they were married effective February 1995. The Appellant has never returned to Somalia; has never been to Kenya; and has never left Canada since the purported marriage in February 1995. Maryan has never been in Canada. She has never come to Canada at any time. The Appellant claims that he divorced her in January 1998 which happens to be one month after the two taxation years which are under appeal.

[13] According to the imam who testified at the commencement of the trial, an Islamic marriage can be severed or divorced if the husband says to the wife “I divorce you” three times. The divorce then becomes effective. The husband can say those words to the wife but the wife cannot say those words to the husband. The imam also said that if the marriage were to be registered or certified, if it took place with the parties not in the same location (as is the situation in this case) it would be certified as being located only in the place where the man was at the time of the ceremony. The facts in this case would place the marriage in Ontario because the Appellant was in Toronto when this telephone transaction took place.

[14] There is no evidence that the Appellant took any steps to have his marriage certified or registered with appropriate documentation from the two witnesses who were available at the time. There is no evidence that a search of marriage registrations under the laws of Ontario (where births, deaths and marriages are registered) would show that the Appellant was married. The only evidence in this Court of the Appellant's marriage is his own testimony as to what happened on the telephone in February of 1995, and the opinion of the iman (to which I attach little weight) that such a telephone transaction (if it took place) would be recognized as a marriage under Islamic law.

[15] The purported wife never came to Canada and the Appellant never went back to his homeland of Somalia or to Kenya. He and his purported wife never came together. By any standard in any culture, marriage is ordinarily contracted, blessed and celebrated to permit a man and woman to come together and live together. There are of course extraordinary circumstances like war which cause people to deport from the norm (and there was a civil war in Somalia) but Maryan who is claimed to be the Appellant's wife was not in Somalia. She was living in a refugee camp in Kenya. Therefore, the civil war in Somalia was not what kept the Appellant and his purported wife apart.

[16] If the marriage was arranged, why would it be arranged if the parties were never going to be together? The Appellant stated that he divorced Maryan and the divorce took place in January of 1998 because he had commenced an affair with another woman here in Canada and his purported wife in Kenya had found out about it. Be that as it may, it is difficult to find that there was a marriage in February 1995 when there is no contemporary documentation. The Appellant's agent produced an affidavit which appears to have been sworn by Maryan. This affidavit was strongly objected to by counsel for the Respondent because it goes to the heart of the case and there was no chance to question Maryan on her statements. Notwithstanding that objection, in the interests of having a more complete story, I allowed the affidavit to be entered as Exhibit A-1 but cautioned the Appellant's agent that I may give little weight to it. Upon reflection, I will give more weight to the affidavit than I had thought. It is short and so I shall set it out in full.

A F F I D A V I T

I, MARYAN HUSSIEN YUSUF of Post Office Box 68837, Nairobi in the Republic of Kenya, make Oath and say as follows:-

1. That I am an adult female.

2. That I am a Somali Refugee in Kenya.

3. That I have received from my husband SADAQ MOHAMED AHMED who is in Canada, the following remittances:-

Year Canadian Dollars

1996 $4,950

1997 $4,950

Total $9,900

4. That I am therefore a dependant of the said SADAQ MOHAMED AHMED who has sponsored me to join him in Canada.

5. That I make this Affidavit for the Canadian Immigration authorities to issue me with a Canadian Entry Visa.

6. That what is stated hereinabove is true to my personal knowledge.

SWORN at Nairobi this 24th day )

of May, 1999. )

)

BEFORE ME:- ) "Maryan Hussein"

)

"Vishnu Sharma" )

NOTARY PUBLIC )

[17] There are statements in the affidavit which run against the Appellant's interests. First, the affidavit was sworn on the 24th day of May, 1999, about one month after this appeal was commenced. If the divorce took place in January 1998, sixteen months before this affidavit was sworn, why does Maryan refer to the Appellant as "my husband"? Why does she say in the present tense "I am therefore dependent on him"? Why does she say “This is made for the Canadian Immigration authorities to issue me a Canadian Entry Visa”? The language of the affidavit is not consistent with the Appellant’s own testimony.

[18] If I were to assume that there was a marriage, there is a further question as to whether the Appellant made any payments to support the purported wife. There are seven documents (Exhibit A-2 to A-8) which were described by the Appellant’s agent as receipts. Whether they are receipts is subject to some argument. Maryan's name appears on only two of the seven purported receipts. Exhibit A-2 for 1,000 U.S. dollars states “$1,000 for Maryan Hussien Yusuf”. It is signed by Omar Sheikh who testified in this case. He testified that he is an employee of a Canadian chartered bank and has known the Appellant since 1991. He is from Somalia but did not know the Appellant in Somalia. Mr. Sheikh said that he went to Kenya in 1996 looking for his own relatives as a result of the civil war in Somalia. He said that he took this $1,000 from the Appellant as a friend and that he located the woman (Maryan) who is claimed to be the Appellant's wife; and delivered the $1,000 to her in May 1996.

[19] Mr. Sheikh appeared to be a credible witness. He was not seriously cross-examined. He was asked only to produce his identification. He produced a Canadian passport showing that he entered Kenya in May 1996 which is consistent with his oral testimony and consistent with the receipt that's entered as Exhibit A-2.

[20] Maryan's name also appears on Exhibit A-7 which is a yellow bank-type document from an organization on Bloor Street (Toronto) which sends money around the world. Following the word "Beneficiary", there is the Appellant's nickname and then underneath that: "care of Maryan H. Yusuf” which is the name of the purported wife.

[21] The other five documents (Exhibits A-3, A-4, A-5, A-6 and A-8) simply indicate that the Appellant was delivering money to someone. In two of those documents, the amounts were in cash; the others were sent through "Bico Toronto", an organization on Bloor Street in Toronto. The Appellant stated that he made sure that the money went to his purported wife on each occasion by phoning her to make sure she got it but, apparently, throughout this period she was living in a refugee camp and so he could not reach her directly. He would phone some home in Nairobi or in a nearby community and they would track down Maryan who was living with the Appellant's mother. He said that Maryan and his mother were good friends. He had actually gone to high school with Maryan.

[22] There is not a true ring to these documents because they're all in U.S. funds and in round amounts. There is no conversion rate; and there is no evidence that they were acquired by any withdrawal from any financial institution in Canada. The Appellant is a full-time employee of a manufacturing concern in Mississauga. When I asked him how he was paid, he said he was paid by cheque every week. I asked him if he deposited his cheques in the bank, and he stated that in the years under appeal he did not. He took his cheques to a cheque-cashing agency and converted his cheques to cash. It was only after the two years under appeal that he got a bank account of his own where he now deposits his cheques. He came to Canada in 1990 as a 19 year old. That is still an impressionable age even though a person at 19 is an adult. By 1995 when he went through this ceremony he described, he had been in Canada for five years. A person living in a new country between the ages of 19 and 24 would, I think, adapt to the ways of the country. In the North American culture, large amounts are usually paid by cheque. And yet the Appellant stated that in these years, he was buying U.S. dollars with Canadian cash and handing the U.S. dollars to some third party body saying: "You are going over to Kenya. Would you take this money and deliver it to this particular woman"? It is these amounts which the Appellant claims as alimony payable to his wife.

[23] The evidence which is most against the Appellant is his own tax returns for the two years under appeal. They were prepared by an accountant. On each return there is a Revenue Canada form called "Declaration of Support of Non-Resident Dependant Spouse and Children". All the blanks are filled in with handwriting which the Appellant identified as that of the accountant who prepared his tax returns but, on the bottom line, the Appellant has signed. Each form shows the amount $4,950 as going to his mother and Maryan. Each form describes Halimo Ali as the Appellant's mother born in 1946. On the next line, Maryan Hussien is described as "spouse" born in 1968. There are “ditto” marks under the amount $4,950 indicating that it was paid to both women. Their address is given as the Utanga Refugee Camp Kenya. I am inclined to accept these two Declarations as being in part true. I think the Appellant, as a dutiful son, from time to time sent money to his mother and perhaps other family members. He may also have sent money to Maryan and her family but, on the evidence before me, I cannot conclude that the Appellant paid any amounts to Maryan as a wife. The Appellant falls a long way short of proving that he was ever married to Maryan or that he paid any amount to her as alimony.

[24] The deduction is sought under section 60. The Appellant was cross-examined as to whether (if he was married) there had been a marriage breakdown in 1996 or 1997 and he said "no". He was asked whether there was any kind of written separation agreement and he said "no". He was asked if there was any kind of decree or order or judgment from a court that required him to make these payments and he said "no". He said that he was required to make them under Islamic law which requires a man to support his wife. The Appellant's agent argued that Islamic law was a competent tribunal, and that I should regard it in that sense, as the tribunal requiring him to make the payments. I cannot read it that way. Section 60 paragraph (b) as it read up to the end of 1996 used the following words in closing:

...at the time the payment was made and throughout the remainder of the year and the amount was paid under a decree, order or judgment of a competent tribunal or under a written agreement.

Those words have been construed in countless cases for more than 40 years. For a payment to be deductible under paragraph 60(b), the amount had to be paid under a written separation agreement or pursuant to a decree, order or judgment of a competent tribunal. The tax courts have considered a tribunal to be one that could issue a decree, make an order or deliver a judgment that would affect the marriage. The Appellant's agent argued that the only tribunal which could affect this marriage was Islamic law. That may be the Appellant's faith but, under Ontario law, there would have to be some qualified person (clergy, rabbi, justice of the peace, judge, etc.) who was licensed or otherwise authorized to unite a man and woman in marriage.

[25] The Appellant took no steps under the laws of Ontario to register his marriage or to certify that he had been married. There was nothing under the laws of Ontario which would have caused any court in Ontario to think that there would be a tribunal which could issue a decree, order or judgment affecting the Appellant's marriage. In the absence of any such decree, order or judgment or a separation agreement, there is no right to deduct these amounts at all under section 60. They were not paid pursuant to an order or decree or a written separation agreement resulting from the breakdown of a marriage. On the Appellant's own testimony, if a marriage existed, it had not broken down.

[26] Paragraph 118(1)(a) permits a tax credit where an individual is a married person who supports the individual's spouse and is not living separate and apart from the spouse by reason of a breakdown of the marriage. In other words, if a married man supports his wife because they are living separate and apart but the marriage is not broken down, then a tax credit is available. Although I am inclined to believe that the witness, Mr. Omar Sheikh, delivered some money to Maryan or to the Appellant's mother in 1996, I am not satisfied that the Appellant was married at any time in 1996. The appeals for 1996 and 1997 are dismissed.

Signed at Ottawa, Canada, this 16th day of June, 2000.

"M.A. Mogan"

J.T.C.C.