[OFFICIAL ENGLISH TRANSLATION]
Date: 19980420
Docket: 97-2756(IT)I
BETWEEN:
LINDA TREMBLAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Guy Tremblay, J.T.C.C.
Issue
[1] According to the Notice of Appeal
and the Reply to the Notice of Appeal, at issue is whether the
appellant is justified in claiming the child tax benefit for
Caroline et Karine, her twin daughters born in May 1979, for the
months from October 1994 to March 1995.
[2] Initially, the respondent
apparently granted the appellant $518.75 for the period from July
1994 to June 1995. Subsequently, that decision was changed and
the respondent is now claiming $1,037.52 from the appellant. It
would appear that the appellant's former spouse had custody
of the twin girls from October 1994 to March 1995.
Burden of proof
[3] The burden of proof is on the
appellant, who must establish that the assessment made by the
respondent is unfounded. This burden of proof is based on a
number of court decisions, including the judgment by the Supreme
Court of Canada in Johnston v. Minister of National
Revenue.[1]
[4] In that judgment, the Supreme
Court ruled that the facts assumed by the respondent in support
of the assessments or reassessments are presumed to be true until
proven otherwise. In the present case, the facts assumed by the
respondent are set out in subparagraphs 5(a) to (d) of the Reply
to the Notice of Appeal. Paragraph 5 reads as follows:
[translation]
5. In drawing
up the November 20, 1996 notice of child tax benefit for the 1993
base year, the Minister assumed in particular the following
facts:
(a) during the 1993
taxation year, the appellant was separated from Rémi
Desgagné, her former spouse; [admitted]
(b) On March 3,
1995, Rémi Desgagné applied for the child tax
benefit for Caroline and Karine, his twin daughters, of whom he
had had custody and for whom he had been responsible since
October 1994; [admitted with explanations]
(c) after reviewing
the information obtained from the appellant's former spouse,
the Minister revised the appellant's child tax benefit to
zero for the months from October 1994 to June 1995;
[admitted]
(d) the appellant
therefore received an overpayment of $1,037.52 for the months
from October 1994 to March 1995; [admitted]
Evidence adduced
[5] The appellant admitted the
above-quoted subparagraph 5(b). She explained that the civil
trial for custody of the children had begun on September 2, 1994
and ended in March 1995 following four postponements and an
out-of-court settlement signed on January 5, 1994.
[6] However, a court order had
transferred custody of the twin girls to the appellant's
former spouse starting on September 2, 1994. The appellant's
former spouse retained custody of the twins.
[7] The appellant complains that she
never received support payments from her former spouse, and
according to the garnishment dated September 22, 1993, the
support arrears amounted to $45,850.
[8] Following an agreement signed by
the parties on April 18, 1995, the Quebec Superior Court,
District of Alma, delivered on May 3, 1995 its judgment in case
No 160-12-001106-837. The documents
in question read as follows:
Agreement
[translation]
CANADA
SUPERIOR COURT
PROVINCE OF QUEBEC FAMILY
DIVISION
DISTRICT OF ALMA
No.
160-12-001106-837
RÉMI DESGAGNÉ, plaintiff
v.
LINDA TREMBLAY, defendant
and
ATTORNEY GENERAL OF
QUEBEC, intervenor
AGREEMENT
Whereas the judgment rendered on January 5, 1994 set support
payments at $50 per week for the defendant and her two
children;
Whereas the plaintiff has defaulted on these support
payments;
Whereas the two children for whom the support was to be paid live
with their father;
Whereas the plaintiff is receiving unemployment insurance
benefits and the defendant is receiving income security
benefits;
The parties agree:
1. To cancel the support payments, subject to recourse by the
defendant;
2. To cancel all support arrears owed to date, except for an
amount of $779.27, already seized, which will be handed over to
the intervenor.
Alma, this 18th day of April, 1995.
(s) Linda Tremblay
(s) Rémi
Desgagné
Linda
Tremblay
Rémi Desgagné
(s) Micheline Paradis
(s) Me Alain
Bergeron
Micheline Paradis
Me Alain
Bergeron
Judgment
[translation]
C A N A D A
PROVINCE OF
QUEBEC
SUPERIOR COURT
DISTRICT OF ALMA
No.: 160-12-001106-837
ALMA, this 3rd day of May 1995.
THE HONOURABLE BENOIT MORIN, S.C.J. (JM1549)
RÉMI DESGAGNÉ, domiciled and resident at
527B St-Wilbrod, Hébertville-Station, District
of
Alma G0W 1T0,
Applicant;
-v.-
LINDA TREMBLAY, domiciled and resident at
192 du Pont sud, Alma, District of Alma,
Respondent.
JUDGMENT
This is an application to change child custody and to cancel
support payments.
At the time of the application, an agreement concerning support,
duly signed by the parties, was filed and it was requested that a
judgment be issued ratifying the said agreement.
Concerning custody of the minor children, Caroline and Karine, a
psychosocial assessment report prepared on March 2, 1995 by
Mr. Réal Maltais, a social worker, was filed before
the court. That report recommends that custody of the children be
given to their father and that access rights be granted to the
mother. The mother agrees with this recommendation, but objects
to the applicant's request that custody of the children be
made retroactive to September 2, 1994.
Given the evidence adduced, the Court considers it appropriate to
act on the psychosocial assessment report, without however making
the judgment regarding custody of the children retroactive. The
Court considers it appropriate to emphasize to the applicant that
custody of his children may be taken from him should he fail to
fulfil his obligations in that regard in an appropriate
manner.
FOR THESE REASONS, THE COURT:
ALLOWS the application in part;
OFFICIALLY ACKNOWLEDGES, RATIFIES and MAKES BINDING the
parties' agreement of April 18, 1995, which is to have effect
as if each of its clauses were set out in full herein, and ORDERS
the parties to abide by that agreement;
GIVES custody of the minor children, Caroline and Karine, to the
applicant;
GRANTS the respondent rights of access to her two children in
accordance with the wishes expressed by the said children;
THE WHOLE with each party to bear his or her own costs.
(s) Benoit
Morin
BENOIT MORIN
SUPERIOR COURT JUDGE
Me ALAIN BERGERON
Counsel for the applicant
MORENCY DUCHESNE (Me Micheline Paradis)
Counsel for the respondent
[9] Since the Superior Court judgment
was law between the parties, the respondent must respect its
ruling that the father's custody of the children was not
retroactive.
Conclusion
[10] The appeal is allowed, with costs, and
the assessment is referred back to the Minister of National
Revenue for reconsideration and reassessment.
Signed at Québec, Quebec, this 20th day of April
1998.
J.T.C.C.
Translation certified true
on this 10th day of June 2003.
Erich Klein, Revisor