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