Tax Court of Canada Judgments

Citation: 2005TCC640 Date: 20051014 Docket: 2003-2671(IT)I

BETWEEN:

LAWRENCE A. YASKIEL,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

(Delivered orally from the Bench at Toronto, Ontario on March 8, 2004)

MargesonJ.

[1]      The question before the Court is whether the Appellant, during the year in question is entitled to claim an amount for an eligible dependent in the amount of $6,293 and the deduction for child care expenses in the amount of $10,080.

[2]      In that year he claimed $5,556 deduction for payments to Sherwood Heights School for 52 weeks and $4,880 for payments to the YMCA for 52 weeks.

[3]      The Court is satisfied that the Appellant is not entitled to claim these latter amounts. Firstly, he did not make the payments. It is quite clear from the evidence that he was not required to make them. According to the evidence the agreement provided that the spouse was to make those payments.

[4]      Secondly, there was not enough specificity as to what those amounts were actually for that he allegedly paid to the YMCA.

[5]      In that respect the appeal is dismissed and the Minister's assessment is confirmed.

[6]      The Appellant also claimed the equivalent-to-spousal deduction in the amount of $6,293.

[7]      In that regard the Court is satisfied that the Appellant has rebutted some of the presumptions contained in the Reply, particularly the very important presumption in paragraph 7(c), that the Appellant did not have custody or joint custody of either of the children referred to in paragraph 7(b) and that after the date of the separation neither of the children lived with the Appellant in the same self-contained domestic establishment.

[8]      The Court is satisfied that that presumption has been rebutted. The Appellant gave sufficient evidence in that regard and the Respondent called a witness who also testified that that was the case.

[9]      The Court is satisfied that the Appellant is entitled to claim that amount providing that he is not barred by the provisions of subsection 118(4).

[10]     The Court is satisfied that the Appellant is not prohibited from claiming the amount because of subsection 118(4). The witness called on behalf of the Respondent was unable to indicate that someone else had claimed the amount and on the basis of the Respondent's testimony, the Court is satisfied that he has met the burden with respect to that part of the claim and he is entitled to claim the deduction for $6,293, which is the equivalent-to-spousal deduction.

[11]     The Court will allow the appeal and refer the matter to the Minister of National Revenue for reconsideration and reassessment based upon the Court's decision that the Appellant is entitled to claim the amount of $6,293 for the 2001 taxation year as a gross non-refundable tax credit in respect of an eligible dependent.

                Signed at Ottawa, Canada this 14^th day of October 2005.

"T. E. Margeson"

Margeson J.

CITATION:                                        2005TCC640

COURT FILE NO.:                             2003-2671(IT)I

STYLE OF CAUSE:                           Lawrence A. Yaskiel v. Her Majesty the Queen

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        March 8, 2004

REASONS FOR JUDGEMENT BY: The Honourable Justice T. E. Margeson

DATE OF JUDGMENT:                     October 11, 2005

APPEARANCES:

Agent for the Appellant:	Marshall Bryan Sone
Counsel for the Respondent:	Craig Maw

COUNSEL OF RECORD:

       For the Appellant:

                   Name:                             

                   Firm:

       For the Respondent:                     John H. Sims, Q.C.

                                                          Deputy Attorney General of Canada

                                                          Ottawa, Ontario