[OFFICIAL ENGLISH TRANSLATION]
97-2756(IT)I
BETWEEN:
LINDA TREMBLAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on April 16, 1998, at Québec, Quebec, by
the Honourable Judge Guy Tremblay
Appearances
Counsel for the Appellant: The Appellant herself
Counsel for the Respondent: Michel Lamarre
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1993 taxation year is allowed, with costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Québec, Quebec, this 20th day of April 1998.
|
"Guy Tremblay" |
J.T.C.C.
Translation certified true
on this 10th day of June 2003.
Erich Klein, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 19980420
Docket: 97-2756(IT)I
BETWEEN:
LINDA TREMBLAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Guy Tremblay, J.T.C.C.
Issue
[1] According to the Notice of Appeal and the Reply to the Notice of Appeal, at issue is whether the appellant is justified in claiming the child tax benefit for Caroline et Karine, her twin daughters born in May 1979, for the months from October 1994 to March 1995.
[2] Initially, the respondent apparently granted the appellant $518.75 for the period from July 1994 to June 1995. Subsequently, that decision was changed and the respondent is now claiming $1,037.52 from the appellant. It would appear that the appellant's former spouse had custody of the twin girls from October 1994 to March 1995.
Burden of proof
[3] The burden of proof is on the appellant, who must establish that the assessment made by the respondent is unfounded. This burden of proof is based on a number of court decisions, including the judgment by the Supreme Court of Canada in Johnston v. Minister of National Revenue.[1]
[4] In that judgment, the Supreme Court ruled that the facts assumed by the respondent in support of the assessments or reassessments are presumed to be true until proven otherwise. In the present case, the facts assumed by the respondent are set out in subparagraphs 5(a) to (d) of the Reply to the Notice of Appeal. Paragraph 5 reads as follows:
[translation]
5. In drawing up the November 20, 1996 notice of child tax benefit for the 1993 base year, the Minister assumed in particular the following facts:
(a) during the 1993 taxation year, the appellant was separated from Rémi Desgagné, her former spouse; [admitted]
(b) On March 3, 1995, Rémi Desgagné applied for the child tax benefit for Caroline and Karine, his twin daughters, of whom he had had custody and for whom he had been responsible since October 1994; [admitted with explanations]
(c) after reviewing the information obtained from the appellant's former spouse, the Minister revised the appellant's child tax benefit to zero for the months from October 1994 to June 1995; [admitted]
(d) the appellant therefore received an overpayment of $1,037.52 for the months from October 1994 to March 1995; [admitted]
Evidence adduced
[5] The appellant admitted the above-quoted subparagraph 5(b). She explained that the civil trial for custody of the children had begun on September 2, 1994 and ended in March 1995 following four postponements and an out-of-court settlement signed on January 5, 1994.
[6] However, a court order had transferred custody of the twin girls to the appellant's former spouse starting on September 2, 1994. The appellant's former spouse retained custody of the twins.
[7] The appellant complains that she never received support payments from her former spouse, and according to the garnishment dated September 22, 1993, the support arrears amounted to $45,850.
[8] Following an agreement signed by the parties on April 18, 1995, the Quebec Superior Court, District of Alma, delivered on May 3, 1995 its judgment in case No 160-12-001106-837. The documents in question read as follows:
Agreement
[translation]
CANADA SUPERIOR COURT
PROVINCE OF QUEBEC FAMILY DIVISION
DISTRICT OF ALMA
No. 160-12-001106-837
RÉMI DESGAGNÉ, plaintiff
v.
LINDA TREMBLAY, defendant
and
ATTORNEY GENERAL OF
QUEBEC, intervenor
AGREEMENT
Whereas the judgment rendered on January 5, 1994 set support payments at $50 per week for the defendant and her two children;
Whereas the plaintiff has defaulted on these support payments;
Whereas the two children for whom the support was to be paid live with their father;
Whereas the plaintiff is receiving unemployment insurance benefits and the defendant is receiving income security benefits;
The parties agree:
1. To cancel the support payments, subject to recourse by the defendant;
2. To cancel all support arrears owed to date, except for an amount of $779.27, already seized, which will be handed over to the intervenor.
Alma, this 18th day of April, 1995.
(s) Linda Tremblay (s) Rémi Desgagné
Linda Tremblay Rémi Desgagné
(s) Micheline Paradis (s) Me Alain Bergeron
Micheline Paradis Me Alain Bergeron
Judgment
[translation]
C A N A D A
PROVINCE OF QUEBEC SUPERIOR COURT
DISTRICT OF ALMA
No.: 160-12-001106-837
ALMA, this 3rd day of May 1995.
THE HONOURABLE BENOIT MORIN, S.C.J. (JM1549)
RÉMI DESGAGNÉ, domiciled and resident at
527B St-Wilbrod, Hébertville-Station, District of
Alma G0W 1T0,
Applicant;
-v.-
LINDA TREMBLAY, domiciled and resident at
192 du Pont sud, Alma, District of Alma,
Respondent.
JUDGMENT
This is an application to change child custody and to cancel support payments.
At the time of the application, an agreement concerning support, duly signed by the parties, was filed and it was requested that a judgment be issued ratifying the said agreement.
Concerning custody of the minor children, Caroline and Karine, a psychosocial assessment report prepared on March 2, 1995 by Mr. Réal Maltais, a social worker, was filed before the court. That report recommends that custody of the children be given to their father and that access rights be granted to the mother. The mother agrees with this recommendation, but objects to the applicant's request that custody of the children be made retroactive to September 2, 1994.
Given the evidence adduced, the Court considers it appropriate to act on the psychosocial assessment report, without however making the judgment regarding custody of the children retroactive. The Court considers it appropriate to emphasize to the applicant that custody of his children may be taken from him should he fail to fulfil his obligations in that regard in an appropriate manner.
FOR THESE REASONS, THE COURT:
ALLOWS the application in part;
OFFICIALLY ACKNOWLEDGES, RATIFIES and MAKES BINDING the parties' agreement of April 18, 1995, which is to have effect as if each of its clauses were set out in full herein, and ORDERS the parties to abide by that agreement;
GIVES custody of the minor children, Caroline and Karine, to the applicant;
GRANTS the respondent rights of access to her two children in accordance with the wishes expressed by the said children;
THE WHOLE with each party to bear his or her own costs.
(s) Benoit Morin
BENOIT MORIN
SUPERIOR COURT JUDGE
Me ALAIN BERGERON
Counsel for the applicant
MORENCY DUCHESNE (Me Micheline Paradis)
Counsel for the respondent
[9] Since the Superior Court judgment was law between the parties, the respondent must respect its ruling that the father's custody of the children was not retroactive.
Conclusion
[10] The appeal is allowed, with costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment.
Signed at Québec, Quebec, this 20th day of April 1998.
|
"Guy Tremblay" |
J.T.C.C.
Translation certified true
on this 10th day of June 2003.
Erich Klein, Revisor