Beaubier T.C.J.:
1 These appeals pursuant to the Informal Procedure were heard at Edmonton, Alberta on June 6, 1997. The Appellant testified and the Respondent called Brent Aylesworth, Revenue Canada's appeals officer, in respect to this matter.
2 The Appellant has appealed the disallowance of his claims for a deduction for maintenance he alleges he paid in 1990; for a married amount and dependant children claim in 1991; and for his equivalent to married claim in 1992.
3 The Appellant never married Lorraine Davies. He and Lorraine lived together from time to time at Fort McMurray, Alberta and had two children. His claims arise from these circumstances.
4 Paragraph 18 of the Reply reads as follows:
- (18) In so reassessing the Appellant, the Minister made, inter alia, the following assumptions of fact:
(a) the facts admitted supra;
(b) the amount claimed in respect of maintenance, if paid, was not paid pursuant to an order made by a competent tribunal in accordance with the laws of a province;
(c) the amount claimed in respect of maintenance was not proven to have been paid;
(d) the Appellant and his former common-law spouse reconciled in October, 1990 and, as such, the Appellant was not living apart from his former common-law spouse at the end of the 1990 taxation year;
(e) the Appellant and his former common-law spouse have two children as follows:
| Name | Date of Birth |
|---|
| Alyshia | November 23, 1989 |
| Bryony | February 28, 1992 |
(f) during the 1991 and 1992 taxation years the family allowance benefits in respect of Alyshia and Bryony were paid to the former common-law spouse;
(g) A claim for the dependent amount in respect of Alyshia in 1991 and both Alyshia and Bryony in 1992 was made by the former common-law spouse;
(h) the former common-law spouse was entitled to claim an equivalent to married amount in the 1991 and 1992 taxation years;
(i) there is no agreement between the Appellant and his former common-law spouse with respect to who will claim the children for the equivalent to married amount for the 1991 and 1992 taxation years.
On the basis of the evidence led by each party, the assumptions are accepted as true.5 In respect to the appeal for 1990, the Appellant did not have (and never has had) a court order which requires him to pay any maintenance for Lorraine or the children. He stated that his father and he understood from Revenue Canada sources that a written agreement was sufficient, that one was signed and that it was stolen or lost. The Income Tax Act provisions in respect to 1990 are mandatory and require that a court order must exist for the appellant's claim to be successful. There is none. Therefore, the appeal for 1990 is dismissed.
6 Lorraine Davies filed late income tax returns for 1991 and 1992. She obtained social aid from Alberta in both of those years. She also claimed for one dependent child and the child tax credit in 1991 and for two dependent children and the child tax credit in 1992. John testified that she filed a return in those years in which she did not make such claims.
7 John's testimony is not accepted. He also claimed that he had filed the written agreement for 1990 with his 1990 income tax return. Revenue Canada does not have it. In addition, he initially stated that he knew of no reason why Lorraine would need the various tax credits he is claiming, since she had no income other than what he paid her. Later, in rebuttal testimony, he testified in chief that John's mother had told him before the tax hearing that Lorraine had told her that she was receiving Alberta social aid. There is no doubt that this outside income is the basis for Lorraine's claims. It conflicts with his earlier statement. It also indicates that John was not paying her the sum he alleges.
8 John is not credible. The evidence is that Lorraine, and not John, had the care and custody of the children during the years in question. John failed to provide even one photocopy of the alleged 1990 agreement with Lorraine, his alleged amended return, or his alleged cheques of payments to Lorraine. His appeals are dismissed in their entirety.
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