Stone J.T.C.C.: — In our view as it was the female parent who, on the facts as found below, was the person who “primarily fulfils the responsibility for the care and upbringing” of the children of the marriage, only that parent may be properly regarded as the person entitled to child care benefits as provided for in section 122.6 of the Income Tax Act and section 6302 of the Regulations made pursuant to that section of the statute.
This section of the Act contemplates only one parent being an “eligible individual” for the purpose of allowing the benefits. It makes no provision for prorating between two who claim to be eligible parents. Only Parliament can provide for a prorating of benefits but it has not done so.
The section 28 application will be allowed,the judgment of the Tax Court of Canada set aside and the matter remitted to the Tax Court for redetermination in a manner consistent with these reasons. The respondent Stephen Marshall shall have his costs in accordance with section 18.25 of the Tax Court of Canada Act.
Appliction allowed.