Citation: 2010 TCC 131
Date: 20100305
Docket: 2009-2356(IT)I
BETWEEN:
CAPUCINE MESAMOUR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
By notices of
redetermination dated February 20, 2008, the Minister of National Revenue
("the Minister") revised the Child Tax Benefit (CTB) and the
National Child Benefit Supplement (NCBS) for the periods from July 2006 to
June 2007 (2005 base year) and July 2007 to January 2008 (2006
base year). The notices demanded that the Appellant repay $7,417.49 in CTB and
NCBS overpayments for the 2005 base year, and $7,489.27 in CTB and NCBS overpayments
for the 2006 base year.
[2]
In making and
confirming the redeterminations in issue, the Minister relied on the following
assumptions of fact:
[TRANSLATION]
(a)
The Appellant acted as a transition support
family for minors who were claiming refugee protection in Canada.
(b)
The minors were under the responsibility of the Programme
régional d'accueil et d'intégration des demandeurs d'asile (PRAIDA), whose
mandate is to deliver health and social services to refugee claimants and people
who need to sort out their immigration status, and to give unaccompanied minors
subsistence aid until they reach the age of majority or become permanent
residents of Canada. These services are offered through CLSCs
[local community service centres] or other centres.
(c)
The children contemplated by the notices of
redetermination, which stated that the Appellant must repay the amounts
overpaid, are Carmella, Bellard, Fanta, Nancy Marguerite and Rachel. The
coverage applications for Christina and Améris were denied before any benefits
were paid to the Appellant for those children.
(d)
The information gathered by the Agency showed
that during the periods in issue, the Appellant was not the eligible
individual, the children entrusted to her were not wholly dependent on her for
support and she did not have, in law or in fact, the custody and control of those
children.
[3]
The only issue is
whether the Appellant owes the amounts that the Minister claims from her in
relation to the 2005 and 2006 base years. The relevant provisions of the Income
Tax Act, R.S.C. 1985 (5th Supp.), as amended ("the Act") are
sections 122.5, 122.6 and 122.61 and subsections 252(1) and 252(2).
[4]
The Appellant acted as
a transitional support family (famille d'entraide) for children who had arrived
in Canada as unaccompanied refugees and had no
relatives in Canada. She claims that the children were
wholly dependent on her, that she was primarily responsible for their care and
upbringing, and that she was the contact person for the children's school
authorities. The Appellant claims that she had de facto custody of the
children and that she looked after them as her own.
[5]
PRAIDA director Claude
Mallette, who is based at the CLSC de la Montagne, testified at the hearing and
explained PRAIDA's mandate and the services that it provides. Among other
things, the program offers health and social services to refugee claimants and
people who need to regularize their immigration status. The services that
PRAIDA provides include assessments, referrals, and guidance in securing
housing, which is available until the clients become adults or obtain refugee
or permanent resident status. PRAIDA has signed, or is in the process of
signing, formal agreements with Canada's Immigration and Refugee Board and with
the Canada Immigration Centre and the Canada Border Services Agency with a view
to recognizing PRAIDA as a designated representative and to having it share
responsibilities for unaccompanied minors with the Centre jeunesse de Montréal – Institut universitaire.
[6]
Mr. Mallette explained
that PRAIDA takes responsibility for unaccompanied minors when they arrive in Canada at international airports or border stations. Temporary
lodging is provided upon their arrival, and longer-term housing and guidance is
provided later by a support family, a foster family secured through Centre
Jeunesse de Montréal or certain specialized homes or centres. The purpose of
support families is to provide a living environment that helps make up for the
fact that the children are not with parents. They provide food, hygiene and
health services, education, as well as educational and recreational activities.
To cover the housing and support, PRAIDA pays the support family a
contribution of $170 per month for one child and an additional $110 per month
for each additional child. The children's psychological care is provided
by social workers, and a designated PRAIDA representative keeps track of the
children's immigration applications as they make their way through the system.
[7]
According to Mr.
Mallette, neither PRAIDA nor the support families have legal custody of the
children. Following a pilot project carried out by the Service d'aide aux
réfugiés et aux immigrants du Montréal métropolitain, an organization that
merged with Clinique Santé Accueil to form PRAIDA (under which applications for
government benefits have been accepted) the practice became systematic, and, as
a result, several support families have applied for benefits. Mr. Mallette
testified that, as far as he knows, this is the first time that the Canada
Revenue Agency (CRA) has asked that these benefits be paid back.
[8]
Ms. Mesamour testified
as well. She confirmed that she has been a support family since 2005. She lives
alone with her son, who helps her with her daily chores. She works part-time
and receives social assistance benefits. She explained that PRAIDA's role
was mainly to monitor the children's psychosocial well-being and that a
representative visited her every six months for that purpose. She also
confirmed that PRAIDA could take the children away from her without her consent
and that she alone would be unable to support the children's optometry and
dental expenses, which were defrayed by PRAIDA from an ad hoc assistance
budget.
[9]
The CRA officer who
handled the Appellant's objection file also testified at the hearing. In an
information request in the form of a questionnaire, the CRA asked the Appellant
to provide it with proof that she was responsible for the children's care and
upbringing (e.g. a letter from the school administration or the daycare centre
confirming that the children attended their institution, and confirming the
name and address of the guardian or responsible person; and a letter from a
family doctor or dentist confirming the children's visits or examinations and
the name and address of the person with whom the children reside). As required,
the Appellant responded to the questionnaire and submitted two attestations
from a school, which did not contain the name or address of the person
responsible. Based on the information provided by the Appellant and the
documents adduced in connection with the mission, support role and services
offered by PRAIDA, the officer assigned to the Appellant's objection rejected
it. In closing, the officer emphasized that, in the case of foster families,
the government benefits are paid to the Centre Jeunesse, not to the foster
family.
Analysis and conclusion
[10]
Based on the definition
of "eligible individual" under section 122.6 of the Act for the
purposes of the Canada Child Tax Benefit, in order to be an eligible
individual, a person must meet both of the following conditions at the relevant
time: reside with the qualified dependant, and primarily fulfil the responsibility
for the care and upbringing of the qualified dependant. The factors listed in
section 6302 of the Income Tax Regulations ("the Regulations")
are used in order to determine what such care and upbringing consist in.
[11]
Despite the fact that
the definition of "eligible individual" refers solely to the
dependant's parent, the Act extends the meaning of the words "child"
and "parent."
[12]
Under subsection 252(1),
a person wholly dependent on the taxpayer, and of whom the taxpayer has custody
and control, in law or in fact, is considered a child of the taxpayer.
By virtue of subsection 252(2) of the Act, that taxpayer is
considered the child's parent. Here are the relevant excerpts from the two
subsections:
Section 252: Extended meaning of "child"
(1) In this Act, words referring to a child of a
taxpayer include
(a) . . .
(b) a person who
is wholly dependent on the taxpayer for support and of whom the taxpayer has,
or immediately before the person attained the age of 19 years had, in law or in
fact, the custody and control;
(c) . . .
(2)
Relationships. In
this Act, words referring to
(a) a parent of
taxpayer include a person
(i) whose child the
taxpayer is
. . .
[13]
Consequently, a person
who, like the Appellant, is not a parent of the children, but has claimed tax
credits in respect of the children, can be considered their parent if the
children are wholly dependent on her, and under her custody and control.
[14]
In this case, it seems
to me that it is reasonable to believe that the Appellant had custody and
control of the children that PRAIDA entrusted to her. However, I do not believe
it could be claimed that the children were wholly dependent on her.
[15]
I do not see how a
person who already resides with a dependent, has a part-time job and receives
social assistance can be considered to have other children (three or four at a
time) who are wholly dependent on her. The contributions from PRAIDA for each
child taken in are clearly insufficient to enable the Appellant to look after
their care and upbringing. In fact, the Appellant was unable to respond
satisfactorily to the CRA's information request.
[16]
For these reasons, the
appeal is dismissed.
Signed at Ottawa, Canada, this
5th day of March 2010.
"Réal Favreau"
Translation
certified true
on this 29th day
of April 2010.
Brian McCordick,
Translator
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