The Queen v. Marshall, 96 DTC 6292, [1996] 2 CTC 92 (FCA)

Citations
96 DTC 6292, [1996] 2 CTC 92

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Text of decision

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 [1] and section 6302 of the Regulations [2] 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.

‘The term “eligible individual” is defined in section 122.6 in part as follows:

In this subdivision,

“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 the parent of the qualified dependant who primarily fulfils the respon sibility for the care and upbringing of the qualified dependant,

and, for the purposes of this definition,

(h) factors to be considered in determining what constitutes care and upbringing may be set out in regulations made by the Governor in Council on the recommendation of the Minister of National Health and Welfare;

For the purposes of paragraph (h) of the definition “eligible individual” in section 122.6 of the Act, the following factors are to be considered in determining what constitutes care and upbringing of a qualified dependant:

(a) the supervision of the daily activities and needs of the qualified depen dant;

(b) the maintenance of a secure environment in which the qualified depen dant resides;

(c) the arrangement of, and transportation to, medical care at regular inter vals and as required for the qualified dependant;

(d) the arrangement of, participation in, and transportation to, educational, recreational, athletic or similar activities in respect of the qualified depen dant;

(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;

(f) the attendance to the hygienic needs of the qualified dependent on a regular basis;

(g) the provision, generally, of guidance and companionship to the qualified dependant; and

(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.

Summaries

Summary Under

Tax Topics - Income Tax Act - Section 122.6 - Eligible Individual

S.122.6 contemplates only one parent being an "eligible individual". Accordingly, a judgment of the Tax Court in which it prorated the credit between two persons claiming to be eligible parents, was set aside, with the matter being remitted to the Tax Court for redetermination on the basis that it was the female parent who, on the facts, was the person who primarily fulfilled the responsibility for the care and upbringing of the children of the marriage.

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The Queen v. Marshall, 96 DTC 6292, [1996] 2 CTC 92 (FCA)

Citations96 DTC 6292, [1996] 2 CTC 92

Case tabs

Citations
96 DTC 6292, [1996] 2 CTC 92