Date: 19971029
Docket: 96-3942-IT-I
BETWEEN:
NICOLE DEMERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
G. Tremblay, J.T.C.C.
Point at issue
[1] The question is whether in computing her income the
appellant was correct to claim a $648 child tax benefit for her
daughter Nancy in the period from July 1994 to
June 1995.
[2] The appellant alleged that although she lived alone and
her daughter boarded at the Collège Mérici,
she still had to be solely responsible for board and lodging,
school fees and the cost of purchasing school books and so
on.
[3] The respondent alleged that before boarding at the
Collège Mérici Nancy lived with her father
André Brisson and spent most of her time at his home
on weekends during the school year.
[4] The respondent maintained that the appellant had received
an overpayment of $648.
Burden of proof
[5] The appellant has the burden of showing that the
respondent's assessments are incorrect. This burden of proof
results from several judicial decisions, including a judgment by
the Supreme Court of Canada in Johnston v. Minister of
National Revenue.[1]
[6] In the same judgment the Court held that the facts assumed
by the respondent in support of the assessments or reassessments
are also deemed to be true until proven otherwise. In the instant
case the facts assumed by the respondent are set out in
subparagraphs (a) to (d) of paragraph 6 of the Reply to
the Notice of Appeal. That paragraph reads as follows:
[TRANSLATION]
6. In arriving at this child tax benefit notice the Minister
took into account inter alia the following facts:
(a) during the period at issue the appellant was separated
from her ex-husband, André Brisson;
[admitted]
(b) during the period at issue Nancy boarded during the week
at the Collège Mérici and lived primarily with
her father, André Brisson, on weekends;
[denied]
(c) additionally, before starting as a boarder Nancy lived
with her father; [denied in part]
(d) in view of the foregoing, the Minister revised to nil the
appellant's child tax benefit for the period beginning in
July 1994 and ending in June 1995, and determined that
the appellant had received an overpayment totalling $648 for the
period July 1994 to February 1995 for the 1993 base
year. [admitted that she received $648 but denied that it was
an overpayment]
Facts in Evidence
[7] In addition to the foregoing admissions the evidence was
completed by the testimony of the appellant and her daughter
Nancy.
[8] At the start of the hearing counsel for the respondent
gave the Court the proof of service of the subpoena addressed to
André Brisson at his residence in St-Nicholas,
with an allowance of $55 for his transportation expenses.
However, Mr. Brisson was not present in court.
Testimony of Nicole Demers
[9] The appellant testified that during the period from
July 1994 to June 1995 her daughter Nancy attended the
Collège Mérici and lived in the girls'
residence located near the college. Three other girls lived with
her in this residence.
[10] The appellant paid the expenses associated with this
residence and the Collège for her daughter Nancy. They
broke down as follows:
Residence
$245 a month for 10 months $2,450
$ 10 a month for telephone $ 100
Collège
$ 75 registration per session (two sessions) $ 150
$684 school fees per session $1,368
$175 cost of purchasing books per session $ 350
$4,418
[11] Nancy contacted her two to three times a day.
When Nancy was ill (migraines), the appellant went to take her
to hospital. Once the examination was over and the appropriate
medication prescribed and obtained, she would take her back to
the residence at the Collège.
The appellant also helped her go over her school work.
[12] As regards the allegation that before boarding Nancy
lived with her father, the appellant testified that it was true
that in December 1993 Nancy went to live with her
father.
Testimony of Nancy Brisson
[13] In her testimony Nancy confirmed her mother's
testimony in all respects, including the fact that she made two
to three telephone calls a day to her mother.
[14] On weekends while she was boarding, she sometimes lived
at the residence and sometimes lived with her mother, but perhaps
more often with her father in St-Nicholas. Her girlfriends
also lived there. Sometimes she slept at her girlfriends’
home.
Nancy also testified that her father gave her $30 a week for
food.
Analysis
[15] The weight of the evidence is in favour of the
appellant's argument.
Would the father's testimony have changed the Court's
opinion? The Court does not know, but he is the one who took the
decision not to respond to the subpoena.
Conclusion
[16] For these reasons the appeal is allowed, with costs, and
the assessment referred back to the Minister for reconsideration
and reassessment on the basis that Ms. Demers was entitled
to claim $648 as a child care benefit in computing her income for
the 1993 taxation year.
“ Guy Tremblay ”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 12th day of May
1998.
Benoît Charron, Revisor
Email this Content