Citation: 2014TCC66
Date: 20140303
Docket: 2013-2634(IT)I
BETWEEN:
JASON MITCHELL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller J.
[1]
The Appellant appeals
the Canada Child Tax Benefit (“CCTB”) determinations made by the Minister of
National Revenue (“Minister”) for the 2010 and 2011 base taxation years where
the Minister determined that:
(a)
For the period July
2011 to December 2011, the Appellant was not eligible for the CCTB for any of
his children because of the presumption in paragraph (f) of the definition of
“eligible individual” in section 122.6.
(b)
For the period January
2012 to April 2012, the Appellant was eligible for the CCTB for all three
children but he was only entitled to one-half of it because he was a
“shared-custody” parent.
(c)
For the period May 2012
to June 2013, the Appellant was not eligible for the CCTB for his daughter, M.
He was eligible for the CCTB for his sons, D and N, but he was only entitled to
one-half of it because he was a “shared-custody” parent.
[2]
At the beginning of the
hearing, counsel for the Respondent stated that the Minister now concedes that
the Appellant was the sole custody parent of his sons, D and N, for the period
February 1, 2013 to June 1, 2013.
[3]
The Appellant and Lisa
Mitchell (“Former Spouse”) have three children: two sons- D and N who were born
in 1995 and 1996; and a daughter M who was born in 2003 (the “Children”).
[4]
It is clear that the
Appellant and his Former Spouse separated in 2011 even though they disagreed on
which month they separated. According to the Appellant, they separated in
mid-November whereas the Former Spouse testified that they separated in
December 2011. When they separated, the Former Spouse moved to a girlfriend’s
house and the Children continued to live in the family home with the Appellant.
In January 2012, the Former Spouse purchased her own home and moved into it in
February 2012. She stated that her new home had four bedrooms so that each
child would have her/his own room.
[5]
The Appellant testified
that for the first five months after their separation, all three Children lived
with him. Thereafter, M went to live with his Former Spouse and he has access
to her 13 days a month. His sons, D and N, have always lived with him but they
do visit their mother. He stated that since he and his Former Spouse separated,
D and N have slept at his Former Spouse’s home very infrequently.
[6]
Both D and N testified
that they have always lived with their father, the Appellant. They visit with
their mother and on occasion they have slept over but they prefer to live in
the house where they grew up; that is with their father. They said that their
parents are both kind and take care of them.
[7]
It was the Former
Spouse’s evidence that from February 2012 until May 2012, all three Children
spent 3 days a week at her home. Her house is closer to school and she is
involved in their school life and their extracurricular activities. During the
period June 2012 until September 2012, D and N were between her home, the
Appellant’s home and their friends’ homes. From September 2012 until January
2013, N stayed with her more often than D.
[8]
The Ontario Court of
Justice made two Orders with respect to the Children in this matter. The first
was dated May 7, 2012 and it was pursuant to a motion which the Former Spouse
had brought on an ex parte basis. The Order gave the Former Spouse
interim custody of all three Children and the Appellant was given interim
access to the children. The Appellant had neither seen nor known of this Order
until it was presented to him by counsel for the Respondent at the hearing of
this appeal.
[9]
The second Order from
the Ontario Court of Justice was dated November 25, 2013 and it gave the
Appellant custody of D and N retroactively to January 1, 2013. The Former
Spouse was given reasonable access to the boys.
[10]
The issue in this
appeal is whether the Appellant was a “shared-custody parent” for the 2010 and
2011 base taxation years.
[11]
For the purposes of the
CCTB section 122.6 of the Income Tax Act defines:
“cohabiting
spouse or common-law partner” of an individual at any time means the person who
at that time is the individual's spouse or common-law partner and who is not at
that time living separate and apart from the individual and, for the purpose of
this definition, a person shall not be considered to be living separate and
apart from an individual at any time unless they were living separate and apart
at that time, because of a breakdown of their marriage or common-law
partnership, for a period of at least 90 days that includes that time;
“eligible individual” in respect of a qualified dependant at any
time means a person who at that time
(a) resides
with the qualified dependant,
(b) is a parent
of the qualified dependant who
(i) is the parent who primarily fulfils the responsibility for the
care and upbringing of the qualified dependant and who is not a shared-custody
parent in respect of the qualified dependant, or
(ii)
is a shared-custody parent in respect of the qualified dependant,
…
and,
for the purposes of this definition,
(f)
where a qualified dependant resides with the dependant's female parent, the parent
who primarily fulfils the responsibility for the care and upbringing of the qualified
dependant is presumed to be the female parent,
“shared-custody
parent” in respect of a qualified dependent [sic] at a particular time means,
where the presumption referred to in paragraph (f) of the definition “eligible individual
” does not apply in respect of the qualified dependant, an individual who is
one of the two parents of the qualified dependant who
(a) are not at that time cohabitating spouses or common-law partners
of each other,
(b) reside
with the qualified dependant on an equal or near equal basis, and
(c)
primarily fulfil the responsibility for the care and upbringing of the qualified
dependant when residing with the qualified dependant, as determined in
consideration of prescribed factors,
Period July 2011 to December 2011
[12]
According to the definition
of “cohabiting spouse”, the Appellant and his Former Spouse were cohabiting for
the period July 2011 to December 2011. Whether they separated in mid-November
or the end of December 2011 is not really material because they were not living
separate and apart for a period of at least 90 days during July to December
2011. Consequently, the presumption in paragraph (f) of the definition of
“eligible individual” applies and the Appellant is not entitled to the CCTB for
the period July 2011 to December 2011. The Former Spouse is the “eligible
individual” for purposes of the CCTB for this period.
Periods January 2012 to April 2012 and May 2012 to
June 2013
[13]
Each of the Appellant,
D, and N stated that the boys, D and N, resided with the Appellant during the period
January 2012 to June 2013. Their evidence was supported by letters from the
Social Services Department, Ontario Works Division; the principal of the high
school where the boys attended; the family doctor; and, the bus company which
provided transportation for the boys to and from school.
[14]
It is my view that the
Appellant has provided sufficient evidence for me to conclude that he was not a
“shared-custody parent” for D and N in 2012 and 2013. The boys did not reside
with the Former Spouse on an ‘equal or near equal basis’. They resided with the
Appellant the majority of the time. I have given no weight to the Order dated
May 7, 2012 because it was obtained without notice to the Appellant and it did
not reflect the true state of affairs which existed at that time as described
by the Appellant, D, N, and the Former Spouse.
[15]
The Appellant primarily
fulfilled the responsibility for the care and upbringing of his sons. He cooked
for them; he did their laundry; and, he attended at their school to support
them. It is my opinion that the Former Spouse also cared for her sons but they
did not reside with her. They visited with her.
[16]
I concluded that the
Appellant was the only “eligible individual” for D and N for the period January
2012 to June 2013 and he was not a ‘shared custody parent” for them during this
period.
[17]
I have also concluded
that the Appellant was not a “shared custody parent” for M for the period from
January 2012 to April 2012. All parties agreed that M lived at the family home
with the Appellant until May 2012. Thereafter, she lived with the Former
Spouse. The Appellant was the only “eligible individual” for M for the period
January 2012 to April 2012 inclusive. Thereafter, the Former Spouse was the
only “eligible individual” for M.
[18]
For all of the above
reasons, the appeal is allowed.
Signed at Ottawa, Canada, this 3rd
day of March 2014.
“V.A. Miller”
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