Date: 20010423
Docket: 2000-581-IT-I; 2000-2030-IT-I
BETWEEN:
ALI ENOW ALI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
For the Appellant: The Appellant himself
Counsel for the Respondent: Jenna Clark
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Toronto, Ontario, on January 12, 2001)
McArthur J.
[1] For the 1995, 1996 and 1997 taxation years, the appeals are identical but for the amounts in issue. The Appellant seeks to deduct alimony, or support payments, in the amounts of $5,950, $5,985 and $6,500 in each year, respectively. In addition, he was denied his claim of $5,380 as an equivalent-to-spousal amount in the calculation of the non-refundable tax credit. The issue boils down to whether he in fact sent money to his wife, mother, and sister who were all living in Kenya during the relevant years.
[2] The Appellant was married to Sacdiyo Adan Ahmned in 1994 and there is no dispute in this regard. However, to highlight cultural differences from what we are used to in this country, I will give some details. The Appellant has never met his wife although they have been married for six years. It was an arranged marriage completed over the telephone; yet the Appellant has satisfied the Minister of National Revenue, through a certificate issued out of his native country, that he was indeed married. He immigrated to Canada in 1991 from Somalia and is now a Canadian Citizen. His evidence was translated by a Somalian interpreter. He worked in a manufacturer's warehouse earning about $25,000 annually during the relevant years. His mother, sister, and wife lived in a refugee camp in Kenya having left neighbouring Somalia during a civil war. The Appellant spoke of the Moslem culture of giving and said he felt obligated to help his family left behind. His marriage took place while he was in Canada and his wife in Africa. Up to now, he has been unable to save sufficient funds to go to Kenya for a wedding ceremony but anticipates that he will be in a position to do so within a year.
[3] Again, the issue is not whether the Appellant is married but whether he is entitled to claim a tax credit pursuant to paragraph 118(1)(a) of the Income Tax Act which states:
118(1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount determined by the formula
...
where
(a) in the case of an individual who at any time in the year is a married person or a person who is in a common-law partnership who supports the individual's spouse or common-law partner ...
[4] The Minister's assumptions of fact to which the Appellant agrees are as follows:
(a) at all material times, the Appellant was married to Sacdiyo Adan Ahmned;
(b) at all material times, Sacdiyo was a non-resident of Canada;
(c) in the 1995 and 1996 taxation years, the Appellant was not because of a breakdown of his marriage, living separate and apart from his spouse at the end of the year and for a period of at least 90 days beginning in the year;
(d) there is no decree, order or judgment of a competent tribunal that provides for the payment of the Amounts;
(e) the Amounts were not paid pursuant to a decree, order, or judgment of a competent tribunal as alimony or other allowance payable on a periodic basis for the maintenance of the recipient thereof, children of the marriage, or both the recipient and the children of the marriage;
The Minister acknowledges that the Appellant is a married person but denies that he supported his spouse, and that becomes the issue in these appeals.
[5] It is clear that the Appellant is not entitled to deduct the amounts claimed for alimony and support. He does not contest this, and I take it that it was an error in his Notice of Appeal. He does state that he supported his wife, mother, and sister. He submitted an affidavit wherein his wife purports to swear that she received from him the amounts of approximately $6,000 per year in Canadian funds during the three years under appeal. The affidavit entered as Exhibit A-1 appears to be sworn by a notary public in Nairobi. I agree with the Respondent that it should be given little weight because the Appellant's wife cannot be cross-examined.
[6] The Appellant appeared to be a credible witness despite careful cross-examination. He would have made my decision a lot easier had he called witnesses to corroborate his evidence with respect to the cultural differences from his country and to support his evidence that he sent money in cash to his wife and family by way of carriers within his community. He did submit some supporting documentation to include two passports entered as Exhibit A-2 of these couriers who appear to be well-travelled, but these documents, again, were hearsay. He stated that his wife and mother are illiterate and only acknowledged receipt of funds from him by an occasional telephone call.
[7] In addition, the Appellant presented his account statement from the Royal Bank of Canada, being Exhibit A-3, wherein on December 1, 1997, he had a credit balance of $6,326 with withdrawals of $500 on December 16 and $1,200 on December 17 which amounts he stated were sent to his wife and mother. While this case is close to the line, I accept that evidence.
[8] In cross-examination, the Appellant stated that the United Nations provides food and shelter for his wife, mother and sister while in the refugee camp in Kenya; yet I accept that the Appellant did support his wife during the relevant years and is not living separate and apart by reason of a breakdown in the marriage. Although I accept that he sent some money in each of the three years for the support of his wife, I find the amount is not approximately $6,000 per year but rather more in the amount of $2,000. In conclusion, the Appellant is entitled to claim that tax credit pursuant to paragraph 118(1)(a) of the Act in respect of his wife for the 1995, 1996 and 1997 taxation years and in all other respects, the Appellant's appeals are dismissed.
Signed at Ottawa, Canada, this 23rd day of April, 2001.
"C.H. McArthur"
J.T.C.C.