Date: 20010601
Dockets: 2000-2529-IT-I,
2000-2531-IT-I
BETWEEN:
CLAIRE ARCHAMBAULT GRABLY,
RAFAEL GRABLY,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] These appeals were heard on common evidence under the informal procedure. They are appeals for 1996 and 1997 in the case of Mrs. Archambault Grably and for 1996 to 1998 in the case of Mr. Grably. During the years at issue, Mrs. Archambault Grably claimed child tax benefits and the equivalent-to-married tax credit. Mr. Grably claimed deductions for support payments.
[2] The issue is whether the appellants were living separate and apart during the years at issue.
[3] In making the reassessments, the Minister of National Revenue ("the Minister") relied on the facts set out in paragraph 8 of each Reply to the Notice of Appeal ("the Reply"). Since the facts relied on are similar, I will reproduce paragraph 8 of the Reply concerning Mrs. Archambault Grably, which reads as follows:
[TRANSLATION]
(a) the appellant and Rafael Grably have four children together:
(i) Mélanie, who was born in April 1976;
(ii) Olivia, who was born in September 1977;
(iii) Lydia, who was born in May 1982; and
(iv) Mélissa, who was born in April 1984;
(b) during the years at issue, the appellant stated in her tax returns that she was living at 192 Rue Bretagne in Laval, the home of her parents;
(c) 192 Rue Bretagne in Laval is the address of the appellant's parents, Thérèse Paquette and Gérard Archambault;
(d) the Minister is of the opinion that, during the years at issue, the appellant lived at 5250 Rue Chabanel in Laval with her spouse, Rafael Grably:
(i) although the appellant alleges that she has been separated from her spouse since December 5, 1992:
(a) the property assessment for the 1999 fiscal year indicates that she and Rafael Grably were still co-owners of the family residence on Rue Chabanel in Laval; and
(b) a letter from the Régie des rentes du Québec dated November 11, 1999, was sent to her at the address on Rue Chabanel in Laval;
(ii) the appellant said that her daughters Olivia and Mélissa lived with her:
(a) the address indicated on the T4s issued for Olivia by Medicop inc. for 1996 and 1997 was the property on Rue Chabanel in Laval; and
(b) the report cards of Mélissa from the Laurenval school board indicated that she lived on Rue Chabanel in Laval during the years at issue;
(e) the Minister considered that the appellant and Rafael Grably were living together in the property at 5250 Rue Chabanel in Laval during the 1996 and 1997 taxation years, which resulted in the following changes:
(i) the appellant was denied the equivalent-to-married tax credit for the 1996 and 1997 taxation years; and
(ii) in calculating the child tax benefits for the 1996 and 1997 base taxation years, taking the net family income into account reduced the annual child tax benefit amount to zero:
1996 1997
appellant 12,702 6,167
Rafael Grably 68,261 69,117
80,963 75,344
[4] As can be seen, the position of the Minister is that the appellants were not living separate and apart. He did not present any argument based on the spouses' written agreement, which was nonetheless filed as Exhibit A-2. According to the agreement, the appellants had been married since September 1, 1974, and had separated on December 5, 1992. The father took custody of Mélanie and Lydia, while the mother took custody of Olivia and Mélissa. They agreed that Mrs. Archambault Grably would be paid $1,100 a month in support for herself and the two children in her custody.
[5] Both appellants admitted that they owned the house located at 5250 Chabanel.
[6] Mr. Grably explained that the report cards of Mélissa were sent to 5250 Chabanel because he paid some of her school fees. He also explained that it had been necessary to give 5250 Chabanel as Mélissa's address because he and Mrs. Archambault Grably wanted the two sisters to go to the same school. Mr. Grably said that he and Mrs. Archambault Grably have not lived as husband and wife since their separation and that this situation has continued even though they are now living under the same roof. Mrs. Archambault Grably came back to live in the house on Rue Chabanel the second week of May 1999.
[7] Mrs. Archambault Grably admitted subparagraphs 8(a) to (c) of the Reply.
[8] With regard to statement 8(d)(ii)(a) in the Reply, Mrs. Archambault Grably explained that her daughter Olivia lived with her or with Mr. Grably during those years, which were not easy ones between her and her daughter. She gave the same reason that Mr. Grably had given to explain why, for school purposes, Mélissa continued to give 5250 Chabanel as her address. Moreover, Mrs. Archambault Grably worked at the Sir Wilfrid Laurier school board, which was the same school board. Mélissa went to school by bus or was given a lift by Mrs. Archambault Grably's father or brother. She said that she does not have any credit cards or a driver's licence.
[9] Mrs. Archambault Grably filed her statements of remuneration paid or T4s as Exhibit A-3. They indicate her address as being 192 Bretagne for 1996 and 1997; the same address is found on the records of employment dated June 30, 1998, and July 12, 1999, and on a statement of employment insurance benefits for 1997. Exhibit A-4 is a bank document issued in 1999 stating that Mrs. Archambault Grably's address had been 192 Bretagne since August 21, 1993. Exhibit A-5 is a letter sent to Mélissa in 1994 with her social insurance card. The address given is 192 Bretagne.
[10] Mrs. Archambault Grably explained that she lived with her daughters in her parents' basement. She looked after her father, who had major health problems. She was the one who looked after everything, since her mother was unable to do so. She said that she did not drive the car but that her father could still drive. Either she accompanied him to his medical appointments by herself or her brother took them. She did not have a telephone. She used her parents' telephone and could also use their television set.
[11] Following the hearing, Mrs. Archambault Grably submitted a letter from the Régie de l'assurance-maladie du Québec stating that her address and the address of her daughter Mélissa had been 192 Chemin de la Bretagne in Laval since August 17, 1993. Counsel for the respondent chose not to make any comments.
Conclusion
[12] I must take into account the fact that the appellants testified under oath and stated that they lived at different addresses during the years in issue. Their assertions are confirmed by important documents. Co-ownership of property alone cannot be conclusive. The parents gave a plausible explanation concerning the address indicated in Mélissa's report cards. In view of the testimony and documentary evidence, I accept the appellants' assertions.
[13] The appeals are allowed without costs.
Signed at Ottawa, Canada, this 1st day of June 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
2000-2529(IT)I
BETWEEN:
CLAIRE ARCHAMBAULT GRABLY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on common evidence with the appeals of Rafael Grably (2000-2531(IT)I) on May 1, 2001, at Montréal, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Ninette Singoye
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 1996 and 1997 taxation years are allowed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 1st day of June 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
2000-2531(IT)I
BETWEEN:
RAFAEL GRABLY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeals heard on common evidence with the appeals of Claire Archambault Grably (2000-2529(IT)I)
on May 1, 2001, at Montréal, Quebec, by
the Honourable Judge Louise Lamarre Proulx
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Ninette Singoye
JUDGMENT
The appeals from the assessments made under the Income Tax Act for the 1996, 1997 and 1998 taxation years are allowed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 1st day of June 2001.
|
"Louise Lamarre Proulx" |
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]