Demers v. R., [1998] 3 CTC 2737

Tremblay T.C.J.:

Point at issue

The question is whether in computing her income the appellant was correct to claim a $648 child tax benefit for her daughter Nancy in the period from July 1994 to June 1995.

The appellant alleged that although she lived alone and her daughter boarded at the Collège Mérici, she still had to be solely responsible for board and lodging, school fees and the cost of purchasing school books and so on.

The respondent alleged that before boarding at the Collège Mérici Nancy lived with her father André Brisson and spent most of her time at his home on weekends during the school year.

The respondent maintained that the appellant had received an overpayment of $648.

Burden of proof

The appellant has the burden of showing that the respondent’s assessments are incorrect. This burden of proof results from several judicial decisions, including a judgment by the Supreme Court of Canada in Johnston v. Minister of National Revenue^ [1]

In the same judgment the Court held that the facts assumed by the respondent in support of the assessments or reassessments are also deemed to be true until proven otherwise. In the instant case the facts assumed by the respondent are set out in subparagraphs (a) to (d) of paragraph 6 of the Reply to the Notice of Appeal. That paragraph reads as follows:

[TRANSLATION]

6 In arriving at this child tax benefit notice the Minister took into account inter alia the following facts:

(a) during the period at issue the appellant was separated from her ex-hus- band, André Brisson; [admitted]

(b) during the period at issue Nancy boarded during the week at the Collège Mérici and lived primarily with her father, Andre Brisson, on weekends; [denied]

(c) additionally, before starting as a boarder Nancy lived with her father; [denied in part]

(d) in view of the foregoing, the Minister revised to nil the appellant’s child tax benefit for the period beginning in July 1994 and ending in June 1995, and determined that the appellant had received an overpayment totalling $648 for the period July 1994 to February 1995 for the 1993 base year, [admitted that she received $648 but denied that it was an overpayment]

Facts in Evidence

In addition to the foregoing admissions the evidence was completed by the testimony of the appellant and her daughter Nancy.

At the start of the hearing counsel for the respondent gave the Court the proof of service of the subpoena addressed to André Brisson at his residence in St-Nicholas, with an allowance of $55 for his transportation expenses. However, Mr. Brisson was not present in court.

Testimony of Nicole Demers

The appellant testified that during the period from July 1994 to June 1995 her daughter Nancy attended the Collège Mérici and lived in the girls’ residence located near the college. Three other girls lived with her in this residence.

The appellant paid the expenses associated with this residence and the Collège for her daughter Nancy. They broke down as follows:

When Nancy was ill (migraines), the appellant went to take her to hospital. Once the examination was over and the appropriate medication prescribed and obtained, she would take her back to the residence at the Collège.

The appellant also helped her go over her school work.

As regards the allegation that before boarding Nancy lived with her father, the appellant testified that it was true that in December 1993 Nancy went to live with her father.

Testimony of Nancy Brisson

In her testimony Nancy confirmed her mother’s testimony in all respects, including the fact that she made two to three telephone calls a day to her mother.

On weekends while she was boarding, she sometimes lived at the residence and sometimes lived with her mother, but perhaps more often with her father in St-Nicholas. Her girlfriends also lived there. Sometimes she slept at her girlfriends’ home.

Nancy also testified that her father gave her $30 a week for food. Analysis

The weight of the evidence is in favour of the appellant’s argument.

Would the father’s testimony have changed the Court’s opinion? The Court does not know, but he is the one who took the decision not to respond to the subpoena.

Conclusion

For these reasons the appeal is allowed, with costs, and the assessment referred back to the Minister for reconsideration and reassessment on the basis that Ms. Demers was entitled to claim $648 as a child care benefit in computing her income for the 1993 taxation year.

Appeal allowed.