Date: 20010607
Docket: 2000-2604-IT-I
BETWEEN:
SANDRA LOKMER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
John O'Callaghan
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Edmonton, Alberta, on
Tuesday, February 27, 2001)
Margeson, J.T.C.C.
[1] Although the
evidence was somewhat contradictory, overall I think the
witnesses were fairly honest and tried to give the facts as they
saw them.
[2] The facts are
somewhat in dispute. There is downright contradiction in some of
the evidence. The Court has to decide who it believes and whether
sufficient evidence has been adduced by the Appellant to meet her
burden.
[3] In order for the
Appellant to be successful, she must satisfy the Court on the
balance of probabilities that the Minister's assessment was
wrong. She must show that she was the primary caregiver and that
the children were residing with her during the period in question
in accordance with the factors set out in section 6302 of
the Income Tax Regulations,
("Regulations").
[4] The question of
credibility looms large in this particular case. There is a
dispute between the two principal witnesses on the very issue
which the Court has to decide, who was the primary caregiver
during the relevant periods of time and with whom were the
children residing. There is some evidence indicating that each
party was the primary caregiver for part of the period in issue.
Both parties agreed that there was to be support given and each
party contributed. The court is not satisfied as to exactly how
much each one contributed, but it is satisfied that each
contributed.
[5] The Court need
not find that the Appellant gave 51 per cent of the care or
60 per cent or 70 per cent, whatever the case may be. She
should be entitled to claim the period of time during which she
was the primary caregiver, whatever portion of the year that
amounted to.
[6] That point was
not disputed by the Respondent and counsel argued that the real
issue is, whether or not the Appellant has satisfied the Court on
the balance of probabilities that she was the primary caregiver
and that the children were residing with her such as to entitle
her to the child tax benefit during that period in dispute or
during any part of that period.
[7] On that the
evidence is combative.
[8] But the Court is
satisfied that for parts of the period in issue the Appellant was
indeed the primary caregiver and that the children did reside
with her. It need not decide during what periods of time the
husband or somebody else was the primary caregiver, and whether
the children resided with other persons or not. That is not
before this Court. It has to decide what period of time during
the period in issue were the children residing with the Appellant
and whether or not she was the primary caregiver during those
periods of time.
[9] The husband gave
evidence about the contested period, which was only partly
disputed by the wife, but the Court is satisfied that it can
accept a considerable amount of the evidence given by the
husband.
[10] The Court makes a finding
of fact that between December 1997 and September 1998, the
children were residing with the Appellant and she was their
primary caregiver, taking into account the factors listed in
section 6302 of the Regulations, for 20 days per month
excepting the months of April, May and June 1 to June 11,
1998.
[11] The Court finds that the
Appellant was not the primary caregiver and the children were not
residing and living with her for the remaining period of time,
taking into account the factors as set out in section 6302 of the
Regulations.
[12] Regarding September 1998,
the husband said that they were living with his sister, that he
was living at the farm and that the children were coming to the
farm during the day and going home at night. The Appellant did
not lead any evidence to contradict that in any substantial way
although she did dispute it.
[13] The Court finds that during
the month of September 1998, the children were not residing with
the Appellant and she was not the primary caregiver during that
period of time in accordance with the factors set out in
section 6302 of the Regulations.
[14] The appeal is allowed and
the matter is referred back to the Minister of National Revenue
for reconsideration and reassessment for a calculation of the
entitlement of the Appellant to the child tax benefit during the
periods of time which the Court has found heretofore that she was
the primary caregiver and that the children were residing with
her, taking into account the factors referred to in
section 6302 of the Regulations.
[15] Further, the Minister will
recalculate the overpayment, if any, based upon these
findings.
Signed at Ottawa, Canada, this 7th day of June
2001.
"T.E. Margeson"
J.T.C.C.
COURT FILE
NO.:
2000-2604(IT)I
STYLE OF
CAUSE:
Sandra Lokmer and Her Majesty The Queen
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
February 27, 2001
REASONS FOR JUDGMENT BY: The
Honourable T.E. Margeson
DATE OF
JUDGMENT:
March 6, 2001
DATE OF REASONS FOR JUDGMENT:
June 7, 2001
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel for the Respondent: John
O'Callaghan
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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