Tardif T.C.J.:
1 The point at issue is whether the appellant was entitled to the child tax benefit for July and August 1993. The respondent claims that the benefit was payable to the child's father, relying in particular on sections 122.6 to 122.64 and subsection 248(1) of the Income Tax Act (the “Act”) and sections 6300, 6301 and 6302 of the Income Tax Regulations (the “Regulations”).
2 At the hearing, the appellant and her former spouse, the parents of the child Cédric, testified, as did the minor children Cédric and Isabelle, respectively 15 and 16 years of age. The appellant's evidence was supplemented by the testimony of Carole Leroux.
3 The evidence is often contradictory in this type of case and this case was no exception to that rule.
4 After very carefully considering all the testimony, I am of the view that the appellant has discharged the burden of proof that was on her and has established by a preponderance of the evidence that she indeed had custody of the child Cédric during the months of July and August 1993.
5 It appears from the evidence that the appellant primarily fulfilled the responsibility for Cédric's care and upbringing during the period of July and August 1993.
6 It also appears from the evidence that the relationship between Cédric's parents was very tense and even aggressive. Such a climate obviously makes it difficult to discover the truth since the accounts provided were contradictory.
7 Unfortunately, the children are often innocent victims of these conflicts.
8 In the instant case, I have disregarded their testimony, having regard to the fact that it seemed clear to me they had been cleverly prepared to testify by the parent with whom they were living. I therefore essentially relied on the adults' testimony. The testimony of the appellant and Carole Leroux seemed to me to be much more credible than that of the father.
9 I therefore allow the appeal and declare that the appellant was entitled to the tax benefit for the months of July and August 1993.
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