Richer v. The Queen, docket 2002-1369-IT-I (Informal Procedure)

[OFFICIAL ENGLISH TRANSLATION]

2002-1369(IT)I

BETWEEN:

JEAN-PAUL RICHER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on September 18, 2002, at Trois-Rivières, Quebec, by

the Honourable Judge Alain Tardif

Appearances

For the Appellant:                                The Appellant himself

Counsel for the Respondent:                Alain Gareau

JUDGMENT

          The appeal from the assessments made under the Income Tax Act for the 1997, 1998 and 1999 taxation years is dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada, this 11th day of October 2002.

"Alain Tardif"

J.T.C.C.

Translation certified true

on this 24th day of December 2003.

Sophie Debbané, Revisor

[OFFICIAL ENGLISH TRANSLATION]

Date: 20021011

Docket: 2002-1369(IT)I

BETWEEN:

JEAN-PAUL RICHER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Tardif, J.T.C.C.

[1]      This is an appeal concerning the 1997, 1998 and 1999 taxation years.

[2]      The issue is whether the amounts of $3,000 for the 1997 taxation year, $2,800 for the 1998 taxation year and $2,640 for the 1999 taxation year, which the appellant paid, constituted support deductible from his income.

[3]      In making and confirming the assessments for the taxation years in issue, the Minister of National Revenue assumed the following facts:

[TRANSLATION]

(a)         The appellant and Claire Provencher were married on June 7, 1980;

(b)         Two children, Sébastien and Jonathan, were born from their union;

(c)         On July 18, 1991, a divorce decree terminated the union of the appellant and Ms. Provencher;

(d)         The divorce decree did not provide for the payment of support;

(e)         Between 1995 and 1999, the appellant voluntarily paid Ms. Provencher $60 in support for Sébastien and Jonathan;

(f)          The appellant and Ms. Provencher never set down that arrangement in writing.

[4]      After being sworn, the appellant admitted subparagraphs 4(a) to (e) and categorically denied the content of subparagraph 4(f). The appellant explained that, in 1997, he had waived shared custody of their children for their greater well-being since his professional activities were taking up most of his available time.

[5]      He then agreed to pay his former spouse a weekly amount of $60. He said he had paid the said amount voluntarily; the payments were made irregularly.

[6]      The appellant strongly contended that he and his former spouse had entered into an agreement at the time. He said the document in question had been destroyed in a fire on the premises where he had been living.

[7]      He then explained that, in 2000, he had signed an agreement expressly providing that the amounts payable starting at that time would not be deductible or taxable, adding that the situation was entirely different regarding the agreement for which the written document was no longer available for the 1997, 1998 and 1999 taxation years.

[8]      The burden of proof was on the appellant. He admitted all the facts assumed and described in subparagraphs 4(a) to (e) inclusive. He denied subparagraph (f), which stated that he had never set down the arrangement in writing.

[9]      The appellant explained and admitted that he had voluntarily paid his former spouse a weekly amount of $60 in support for her, Sébastien and Jonathan. He also said that he had not paid the amounts regularly or systematically because sometimes his finances did not make it possible for him to do so.

[10]     His former spouse did not testify, and the appellant was unable to file any written documents confirming that there was an agreement.

[11]     The fact that he had paid the amounts voluntarily and on an irregular basis clearly illustrates the circumstances and spirit prevailing at the time. It is obvious that the appellant was cooperating willingly, and I doubt that at the time the spouses had entered into a written agreement that would have had the effect of being binding.

[12]     The burden of proof was on the appellant. To show that his appeal was valid, the appellant had to establish on a balance of probabilities that the amounts in issue were paid under a written agreement signed by the appellant and his former spouse.

[13]     The explanations given by the appellant were insufficient to draw a decisive conclusion to that effect; rather, the evidence showed that there was an oral agreement that was not binding on the appellant.

[14]     Therefore, I must dismiss the appeal.

Signed at Ottawa, Canada, this 11th day of October 2002.

"Alain Tardif"

J.T.C.C.

Translation certified true

on this 24th day of December 2003.

Sophie Debbané, Revisor