Ronel Dorneval and Célimène Bien-Aimé v. Her Majesty the Queen (Informal Procedure), [1994] 2 CTC 2381

Lamarre Proulx J.T.C.C.:—These appeals were heard on common evidence pursuant to the informal procedure and concerned the 1990 and 1991 taxation years. The only point that remains at issue between the parties in the instant appeals is whether the appellants lived together during those years. The appellants claim that they did not; the Minister of National Revenue (“the Minister") claims that they did.

As supporting evidence, the appellants filed an agreementbetween Célimène Bien-Aimé and Ronel Dorvenal [sic] signed before a notary, dated December 18, 1990 (Exhibit A-1), a legal petition for divorce dated December 17, 1991 (Exhibit A-3), a certificate of divorce dated July 2, 1992 (Exhibit A-2) as well as an affidavit of Ronel Dorneval stating that he had not cohabited with Célimène Bien-Aime since May 29, 1990 (Exhibit A-4).

The agreement (Exhibit A-1) indicates that Mr. Dorneval's address was 7501 Rousselot and indicates Célimène Bien-Aimé as being domiciled at 8826 8th Avenue. The spouses called this agreement a separation agreement. Counsel for the respondent asked Mrs. Bien-Aimé to show her where the word separation was mentioned in this agreement. The appellant was unable to indicate such a clause to her. The purpose of this agreement, however, was to share the assests of the two spouses, who had been married under the system of the partnership of acquests in 1975 and to determine the contribution of each in respect of family expenses. It is this agreement that was mentioned in the petition for divorce and decree of divorce as being an agreement on corollary relief.

The petition for decree of divorce dated December 17, 1991 indicates as a ground for divorce the separation of the spouses for more than a year. The place of residence of each of the spouses is therein indicated in the same manner as in the agreement (Exhibit A-1). The certificate of divorce, as mentioned, is dated July 2, 1992.

The evidence showed that the appellants made a few false statements in their income tax returns. For example, the appellant requested an equivalent to married deduction under paragraph 118(1)(b) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") in respect of his daughter Patricia, alleging that she lived with him at 7501 Rousselot, and the appellant requested child care expenses in the amount of $250 and claimed a deduction in respect of her daughter Darling as suffering from a physical disability.

The appellant explained these errors by saying that it was not she who had prepared her income tax return, and the appellant explained that it was because he wanted to receive an additional income tax credit. The appellants admitted at the hearing that the statements were false and apologized for making them. During their testimony, however, they were unshaken in their statement that they had been living apart since May 29, 1990.

The Minister did not doubt that the decree of divorce issued July 2, 1992 evidenced the true marital situation of the former spouses.

The Minister's agent testified. She explained to the Court that she had telephoned the home of the appellant in August 1992 and that the latter's daughter Patricia had answered that her father still lived with them. She also told her that at the homeof her grandmother lived a grandson of the latter and her daughter Rolande, her father’s sister, but not her father. The Minister's agent also telephoned the appellant's mother.

Patricia testified at the respondent's request. She said that it was true that she had given that answer because she believed that it was true. The appellant's mother also testified. She said that she had answered the Minister's agent that she usually lived alone and that some of her children gave her address as being their place of residence.

The appellant explained the testimony of her daughter by the latter's refusal to accept her parents'separation. She said that Patricia refused to admit her par- ents'separation even at school. As to the mother of Mr. Dorneval, it is possible that the latter did not live with her permanently. That does not mean that he necessarily lived with the appellant. It is true that the onus is on the taxpayers to prove what they advance, but it must be understood that these are delicate situations.

It seems to me, however, that the documentary evidence entirely corroborates the appellants' assertions and that logic alone dictates that the spouses were separated before the divorce. A divorce does not occur overnight. The law itself requires the spouses to be separated for a certain time. The documentary evidence suggests that the spouses had lived apart since 1990 and I believe their testimony on this point.

I therefore conclude that the appellants had lived apart since May 29, 1990 and that the Minister must reassess accordingly, taking also into consideration the admissions of the appellants in respect of certain false statements made in their respective returns as mentioned above.

Appeals allowed.