Date:
20101208
Docket:
A-229-10
Citation:
2010 FCA 333
CORAM: SEXTON
J.A.
EVANS J.A.
PELLETIER
J.A.
BETWEEN:
ROBERT WEIDENFELD
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered
from the Bench at Toronto, Ontario, on December 8, 2010)
PELLETIER
J.A.
[1]
The issue in this appeal is whether
Mr.Weidenfeld’s son was resident with him while he was at the George Hull
Centre, a residential treatment centre for adolescents with emotional and
behavioural problems. The resolution of that issue will determine whether Mr.
Weidenfeld was entitled to the Child Benefit Tax Credit during the period from
September 2007 to April 2008.
[2]
The material facts are that Mr. Weidenfeld and
his former spouse agreed to give the Jewish Family and Children’s Services (the
Agency) temporary guardianship of their son in order to facilitate getting him
the help he needed with his emotional and behavioural problems. Mr. Weidenfeld
has chosen not to put this agreement before the Court. The Agency placed the
son in foster homes during the months of July and August 2007. From September
2007 to April 2008, the Agency enrolled the son at the George Hull Centre (the
Centre). Mr. Weidenfeld continued to incur expenses with respect to his son
during this period of time but his living and educational expenses were borne
by others.
[3]
Mr. Weidenfeld continued to receive the Canada
Child Tax Benefit while his son was enrolled at the Centre. In order to be
eligible to receive that benefit, Mr. Weidenfeld had to be an “eligible
individual” and his son had to be a “qualified dependant”, as both those terms
are used in section 122.6 of the Income Tax Act.
[4]
When his son was discharged from the Centre, the
Agency made an application for payment of a special allowance pursuant to the Children’s
Special Allowances Act S.C. 1992 c. 48. The Minister took the position that the
payment of this allowance meant that the son was no longer a “qualified
dependant.” The Tax Court Judge found that the Minister had not proved that the
special allowances had been paid, so that the son was a “qualified dependant”.
As a result, the only issue remaining was whether Mr. Weidenfeld was an
eligible individual.
[5]
The material portions of the definition of an
“eligible individual”, for the purposes of this case, are that the individual
must reside with the qualified dependant and the individual must be the parent
of the qualified dependant who primarily fulfills the responsibility for the
care and upbringing of the qualified dependant. In this case, the Tax Court
Judge found that Mr. Weidenfeld did not reside with his son. She found that
during the period in question, Mr. Weidenfeld’s son resided at the Centre, not
with his father.
[6]
Mr. Weidenfeld challenges this conclusion,
arguing that the situation is analogous to that in which a child is
hospitalized for a period of time. He relies on jurisprudence of the Tax Court
of Canada, notably Fiogbe v R., 2007 TCC 454, Penner v. R., 2006
TCC 413, and Bouchard v. R., 2009 TCC 38. As Mr. Weidenfeld points out
in his written argument, these cases all turn on their particular facts. The
facts in this case are that once Mr. Weidenfeld and his former spouse agreed to
give the Agency temporary guardianship of their son, it was the Agency’s right
to determine his place of residence. The mere fact of the change of legal
guardianship did not change the son’s place of residence, but the son’s removal
from his father’s home did. When the son was placed at the Centre, it became
his place of residence.
[7]
That placement was made with a view to a
semi-independent placement at its conclusion. When the son left the Centre,
the Agency placed him in a group home residence for four months before he
returned to his father’s home. These elements illustrate the Agency’s control
over the son’s place of residence.
[8]
During his stay at the Centre, the son’s
weekend visits with his father were just that, visits, and were not sufficient
to re-establish residence with his father. The same is true of his 2 week stay
with his father during his period of suspension from the Centre.
[9]
It is to Mr. Weidenfeld’s credit that he
remained as involved in his son’s life as he did during this troubled period in
his life, but residence is a separate issue from responsibility for the care
and upbringing of the child. The factors to be considered in ascertaining who
had the responsibility for the care and upbringing of the child do not affect
the issue of the child’s place of residence under the statutory scheme.
[10]
As the decision under appeal is a decision of a
trial court, rendered after a trial, the standard of review is that set out in Housen
v. Nikolaisen, [2002] 2 S.C.R. 235. For questions of fact and mixed fact
and law, the standard of review is palpable and overriding error. In this
case, we are unable to say that the Tax Court Judge’s decision on the issue of
residence was a palpable and overriding error or that she erred in law in
interpreting the word “reside”.
[11]
As a result, the appeal will be dismissed with
costs. We do not need to deal with the other relief which Mr. Weidenfeld
sought in his Memorandum of Fact and Law.
"J.D. Denis
Pelletier"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-229-10
(APPEAL FROM A JUDGMENT OF THE HONOURABLE
JUSTICE MILLER, OF THE TAX COURT DATED APRIL 21, 2010 IN DOCKET NO. 2009-3761
(IT) I)
STYLE OF CAUSE: ROBERT
WEIDENFELD v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 8, 2010
REASONS FOR JUDGMENT OF THE COURT BY: (SEXTON, EVANS & PELLETIER JJ.A)
DELIVERED FROM THE BENCH BY: PELLETIER J.A.
APPEARANCES:
|
Robert Weidenfeld
|
FOR THE APPELLANT
|
|
Khashayar
Haghgouyan
Arnold H.
Bornstein
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Self-Represented
Newmarket, Ontario
|
FOR THE APPELLANT
|
|
Myles J. Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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