Citation: 2012 TCC 126
Date: 20120420
Docket: 2011-2407(IT)I
BETWEEN:
C.P.B.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Rip C.J.
[1]
The appellant, the
children’s mother, says she was the sole primary caregiver of her two children,
a daughter and son, and is therefore entitled to the Canada Child Tax Benefit
(“CCTB”) for each of the 2007, 2008 and 2009 base taxation year. Her former
husband, the children’s father, says that he shared custody of the children
with the appellant and each parent was entitled to the CCTB.
[2]
The Minister of
National Revenue (“Minister”) agreed with the father and allowed the CCTB to
both parents for both of the children for the following periods:
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The appellant
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—
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July 2008 to
February 2009
|
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Father
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—
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March 2009 to
August 2009
|
|
The appellant
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—
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September 2009
to February 2010
|
|
Father
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—
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March 2010 to
August 2010
|
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The appellant
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—
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September 2010
to February 2011
|
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Father
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—
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March 2011 to
June 2011
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[3]
The Minister determined
that the appellant was not the “eligible individual”, described in
section 122.6 of the Income Tax Act (“Act”), of the children
for more than six months of each base taxation year in respect of the CCTB for
each relevant base taxation year since the children resided equally throughout
the relevant periods with their mother and father, who were each equally their
primary caregiver at the particular periods. The mother, the appellant, does
not agree and appealed the determinations made by the Minister.
[4]
The parents were
separated on May 1, 2006 and entered into a separation agreement dated
September 26, 2006 to equally share custody of the children; a temporary
court order, dated September 26, 2007 confirmed the custodial terms of the
agreement. A final order was made on October 19, 2009. The children lived
with each parent on a week-on/week-off basis. There is no issue that the time
each parent devoted to the children was equal.
[5]
The appellant stated
that the needs of the children are “unique, extensive and ongoing”. The
respondent admits this. Both children were subject to professional behavioural
treatment at the Behaviour Institute in Toronto
and the Kinark Child and Family Services (“Kinark”) in Markham,
Ontario.
[6]
The son, born in 1997,
and daughter, born in 1999, each went to a school one block from the
appellant’s home. The appellant signed the school registration forms and says
she was the person the school was to contact in case of emergency: the school
also worked with children and their parents with respect to the issues they
were all experiencing. The appellant says she attended all school meetings; the
father indicated he attended most meetings.
[7]
The son was diagnosed
with autism in 2002. The appellant testified that she attended “every single
meeting” concerning her son’s condition and researched the condition. The son attended
a facility in Oshawa for speech and occupational therapy; he
was also diagnosed at the Children’s Hospital in Toronto
as well as at the Behaviour Institute and Kinark. The daughter was also treated
at the Behaviour Institute and at Kinark. The appellant produced copies of
cheques on her bank account payable in 2008 to Behaviour Institute for the
services to the children. The Behaviour Institute invoices for 2007 and 2008 were
addressed to both parents, occasionally in respect of both children, but more
so in respect of a particular child. Most invoices were for the treatment of
the son.
[8]
The appellant testified
that the father for a time did not want the children to attend therapy at
Behaviour Institute and she had to proceed to Family Court to prevent him from
stopping the treatments.
[9]
The appellant also
testified that while her former husband requested copies of receipts from
Behaviour Institute, he said that he would “absolutely not pay”. The appellant
was able to obtain funding from the Ontario Ministry of Family Services.
[10]
In 2008 the son was
receiving intensive behavioural intervention services with Kinark’s Autism
Program. The program had provincial government funding but it appears from the
evidence that any amounts paid by the parents were paid by the appellant.
Kinark sent invoices to both parents. The contracts with Kinark were signed by
the appellant.
[11]
The appellant declared
that she paid $54,000 for professional help for the children in 2008 plus “200,000
dollars for all years for (her) son.” She explained she raised funds from golf
tournaments, re-mortgaging her home and from loans from her parents.
[12]
The appellant appears to
have recognized her children’s problems early and wished to do something about
it, although I have to conclude from reports from Kinark social workers that
the problems, although significant, may not have been as severe as she assumed.
The evidence also suggests that the father may not have been as supportive as
he ought to have been, in particular with respect to their son.
[13]
There is evidence that
the son was closer to the appellant than to his father. He looked to his
mother, more than his father, for guidance and companionship. When he was at
his father’s home he would telephone his mother and visit his mother. She also
attended all her son’s hockey games whether or not it was her week to have
custody of the children.
[14]
The appellant provided an
abundant number of invoices, receipts and cancelled cheques to support her
claim that she was involved in the son’s recreational activities, paying for
hockey, lacrosse and other sports activities and day camp fees as well as
sports equipment. She also paid for educational supplies for each child.
[15]
The appellant’s view is
that notwithstanding any time the children spend with their father she attends
to their daily needs: she initiates appointments for the majority of the
children’s medical and dental appointments and, she claims she takes them to
these appointments even during a week they are with their father.
[16]
Both parents claim they
pay for the children’s clothing and activities. Notwithstanding that the
appellant provided receipts and the father did not, I am confident that both
parents contributed for clothing and the cost of activities, although not
equally. The appellant produced evidence that in 2007, 2008 and 2009, she contributed $1,945.69, $4,362.68 and
$4,077.63, respectively, towards the costs of the children’s activities, for
example.
[17]
The father described a
normal day at home when the children are with him. The children awake, wash,
make their beds and have breakfast. In earlier years the father’s companion
drove them to school. He has visited school for meetings and to obtain the
children’s progress reports. The school calls him in case of emergency during
the week he has custody. This is contrary to the appellant’s evidence but the
school had his name and information on file, I accept his evidence that he also
was the person who could be called in an emergency. The father also testified
that he paid for some school trips and for special days at school such as
“pizza days”. He also purchased school supplies, he declared.
[18]
The son would have some
therapy sessions at his father’s home, the father testified. The father would
be home during the sessions and sometime participate. The father had a rule
that once the children came home, they would have to do their homework; after
homework they could play.
[19]
In his home the father
maintained a bedroom for each child. He purchased XBox games for the son. He
arranged swim lessons for his daughter and hockey activities for his son. He
said he paid registration fees for hockey and paid for his son’s hockey
equipment. He acknowledged the mother also has purchased hockey equipment.
Later on in cross‑examination he said he paid for all his son’s hockey
equipment and tournaments. The grandparents paid for some equipment but the
mother only once purchased equipment. The appellant’s documentary evidence
contradicted this. She produced cancelled cheques for payment of numerous
activities for the son. More than several were for hockey.
[20]
As far as therapy is
concerned, the father insists both he and the mother arranged for sessions at
Behaviour Institute once the son was diagnosed with autism. This too is contrary
to the mother’s evidence.
[21]
The father stated that
he, also, took the children to medical and dental appointments on his week
having custody. He saw his son on an “off week” if he went to a hockey game or
school event.
[22]
Section 122.6 of
the Act codifies eligibility for the CCTB. It is the “eligible
individual” who may claim a CCTB in respect of a qualified dependent, in this
appeal the son and daughter. An “eligible individual” for purpose of this
appeal means a person who at the relevant time
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(a) resides with the qualified
dependant,
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a) elle réside avec la personne à charge;
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(b) is a parent of the
qualified dependant who
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b) elle est la personne — père ou mère de la personne à charge —
qui :
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(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
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(i) assume principalement la responsabilité
pour le soin et l’éducation de la personne à charge et qui n’est pas un parent
ayant la garde partagée à l’égard de celle-ci,
|
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(ii) is a shared-custody parent in respect of
the qualified dependant,
…
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(ii) est un parent ayant la garde partagée à
l’égard de la personne à charge;
…
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[23]
On the facts before me,
custody of each child was shared by the parents. The children resided with each
parent equally. To determine in such circumstances which parent is eligible to
claim the CCTB in these appeals to the exclusion of the other one must
determine which parent primarily fulfills the responsibility for the care and
upbringing of the child when residing with the parent, as determined by
regulation.
[24]
Section 6302 of
the Income Tax Regulations (“Regulations”) states that:
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… the following factors are to be considered in
determining what constitutes care and upbringing of a qualified dependant:
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… les critères suivants servent à déterminer en
quoi consistent le soin et l’éducation d’une personne à charge admissible :
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(a) the supervision of the daily
activities and needs of the qualified dependant;
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a) le fait de surveiller les activités
quotidiennes de la personne à charge admissible et de voir à ses besoins
quotidiens;
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(b) the maintenance of a secure
environment in which the qualified dependant resides;
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b) le maintien d’un milieu sécuritaire là où
elle réside;
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(c) the arrangement of, and
transportation to, medical care at regular intervals and as required for the
qualified dependant;
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c) l’obtention de soins médicaux pour elle à
intervalles réguliers et en cas de besoin, ainsi que son transport aux
endroits où ces soins sont offerts;
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(d) the arrangement of, participation
in, and transportation to, educational, recreational, athletic or similar
activities in respect of the qualified dependant;
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d) l’organisation pour elle d’activités éducatives,
récréatives, athlétiques ou semblables, sa participation à de telles
activités et son transport à cette fin;
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(e) the attendance to the needs of the qualified dependant
when the qualified dependant is ill or otherwise in need of the attendance of
another person;
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e) le fait de subvenir à ses besoins
lorsqu’elle est malade ou a besoin de l’assistance d’une autre personne;
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(f) the attendance to the hygienic
needs of the qualified dependant on a regular basis;
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f) le fait de veiller à son hygiène corporelle
de façon régulière;
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(g) the provision, generally, of
guidance and companionship to the qualified dependant; and
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g) de façon générale, le fait d’être présent auprès d’elle et de la
guider;
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(h) the existence of a court order in respect of the qualified
dependant that is valid in the jurisdiction in which the qualified dependant
resides.
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h) l’existence d’une ordonnance rendue à son
égard par un tribunal qui est valide dans la juridiction où elle réside.
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[25]
The evidence of both
parents, when it related to only a particular child and not both, in the main,
concerned the son. The evidence as to the care and upbringing of the daughter
paled beside that of the son. The testimony primarily was focused on the son. From
the evidence before me, I could find no difference between the parents as to
their care and upbringing of their daughter. The factors listed in
section 6302 of the Regulations appear to have been shared equally
insofar as the daughter is concerned.
[26]
However, as far as the
son is concerned I find that the appellant’s efforts and support, both
emotional and financial, to the son eclipsed that of the father. She was the
parent whom the son looked to for emotional support, much more than to the
father. It was the mother who initially and continuously attended to the son’s
needs when he was ill or otherwise in need of his mother’s attendance. The
appellant also appears to have been more involved in the son’s participation in
recreational and athletic activities, being present during his participation
and paying for his participation during the relevant years. She was also more
involved in the provision, generally, of guidance and companionship to the son;
she was his emotional crutch. This is not to say that the father was not
involved in his son’s care and upbringing, only that the appellant’s
contribution was greater than his.
[27]
Therefore I will not
disturb the Minister’s determination in respect of the daughter of the
appellant: each parent shared equally the care of the daughter. However, in my
view, the mother was the primary caregiver of the son during the relevant
periods. The appeals will be allowed in respect of the Minister’s determination
with respect to the son only.
Signed at Ottawa, Canada, this 20th day of April 2012.
“Gerald J. Rip”
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