Citation: 2010TCC417
Date: 20100806
Docket: 2009-2603(IT)I
BETWEEN:
FATME CHARAFEDDINE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Sheridan, J.
[1]
The only issue in this Informal
Procedure appeal is whether the Minister of National Revenue correctly
determined that the Appellant was overpaid Canada Child Tax Benefits and GST
Credits for the 2005, 2006 and 2007 base taxation years, a period extending
from July 2006 to June 2009 (the “Period”).
[2]
At the root of this appeal is the
abduction by the Appellant’s former spouse, Safi Ahmed Ghaddar, of the
Appellant’s two daughters during a holiday in Lebanon in September 2004. Both
children were born in Ottawa, Canada. At the time of the abduction, they were 6
and 3.
[3]
Upon their arrival at the
Lebanese airport, Mr. Ghaddar attempted to make off with both girls to his
parents’ residence. As it happened, he managed to take only one; the other went
with the Appellant to the home of her parents. After frantic conversations back
and forth, the Appellant was persuaded to go with her daughter to his parents’
house to try to work things out. This proved a disaster. At a certain point,
the Appellant managed to flee with her daughters to the airport in an attempt
to return to Canada. Mr. Ghaddar, however, was already one step ahead of
her and airport officials blocked their departure. The girls were returned to
their father. The Appellant reported to the Embassy of Canada in Beirut. She
remained in Lebanon for nearly a year trying to find a legal means in
that country for them to return to Canada. She was ultimately unsuccessful. In September 2005,
the Appellant came home alone, bent on availing herself of the Canadian legal
system to effect her daughters’ safe return.
[4]
As of the date of this hearing, Mr.
Ghaddar was continuing to detain the children in Lebanon. He sought and
apparently was granted an order in the Lebanese religious court requiring the
Appellant, among other things, to “abide by her husband (sic) rules and
to return to live with him under the same roof and to practice her conjugal
duties…”.
[5]
On purely humanistic grounds, most
would say the appeal ought to be allowed. From a legal perspective, however,
that outcome is possible only if the Appellant can show that she has satisfied
the criteria under the Income Tax Act. Specifically, the Appellant must
meet the requirements of an “eligible individual” as defined under section
122.6:
“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 responsibility
for the care and upbringing of the qualified dependant,
…
(h)
prescribed factors shall be considered in determining what constitutes care and
upbringing;
[6]
For both the CCTB and the GSTC,
the children must have resided with her during the Period; her eligibility for
the CCTB depends on the additional criterion of whether she was the parent who
“primarily fulfilled the responsibility” for her daughters’ “care and
upbringing” during the Period.
[7]
The Minister’s view is that
because the children were not physically in Canada, it cannot be said that they were resident with the
Appellant or that the Appellant was primarily responsible for their care. While
acknowledging the wrongful quality of Mr. Ghaddar’s actions and the effect of his
“lack of co-operation”, counsel for the Respondent submitted that the children
were nonetheless “settled” in Lebanon and accordingly, the Appellant could not satisfy the
“eligible individual” critieria.
[8]
In the unusual circumstances of
this appeal, I do not find that argument persuasive. There is something
fundamentally flawed with the notion that children wrongfully detained in a
foreign country can be “settled” there.
[9]
Testifying for the Appellant was
the Appellant herself along with Anne Bourdeau and Angela Faraoni. Ms. Bourdeau
is an official with the Department of Foreign Affairs and International Trade Canada
(“DFAIT”) who ultimately took over the Appellant’s file in respect of her
abducted children. Ms. Faraoni is a counsellor at the shelter for battered
women where, for a time after her return to Canada, the Appellant sought refuge and guidance. Their
testimony went unchallenged by the Respondent. I found all three women were
credible in their evidence. No witnesses were called for the Respondent.
[10]
On the question of residency, the
starting point is the Minister’s own assumption that the Appellant and her
family had gone to Lebanon for a holiday. Whatever Mr. Ghaddar’s plans may have
been, I accept the Appellant’s evidence that she and her children had every
intention of returning to Canada. The girls were registered for school in the fall.
The family’s fully furnished apartment and car awaited their return. No steps
had been taken to terminate the lease on the apartment.
[11]
As it happened, the Appellant could not return to Canada as scheduled
because she did not want to leave her children in Lebanon. Her
contact at the Canadian Embassy was Jean-Marc Lesage, at that time the official
responsible for DFAIT’s “Our Missing Children” Program. He became involved in
the file as of April 11, 2005.
His affidavit supports the Appellant’s evidence of her attempts to obtain
custody of her children under Lebanese law were unsuccessful.
[12]
When finally the Appellant
returned to Montreal in September 2005, she discovered that the landlord
had exercised his rights over the family’s apartment and disposed of their
goods and furnishings. Because Mr. Ghaddar had insisted that the Appellant work
in his restaurant business, she had no job to return to. Finding herself out on
the street, the Appellant turned to the women’s shelter where Ms. Faraoni provided
counselling and advised her on financial matters. She helped the Appellant to
get social assistance to support herself and her efforts to get her daughters
back and assisted her in trying to contact her children, to pursue legal
actions and to post her daughter’s information on the missing children’s
website.
[13]
Her efforts eventually
began to bear fruit. Just prior to the commencement of the Period, on April 20, 2006, the Appellant obtained an interim
judgment from the Superior Court of Quebec
(made final October 17, 2007)
confirming Quebec, Canada as the habitual residence of the Appellant and her
two children and granting custody of them to the Appellant. Although she caused
these orders to be served on Mr. Ghaddar in Lebanon, he maintained an attitude of unwavering of non-compliance
in the face of the orders of the Canadian courts.
[14]
Throughout the Period, the Appellant continued to fight for the return of
her children. On February 3, 2009, the Superior Court of Quebec, after
reviewing much of the same evidence relied upon by the Appellant in the present
appeal, pronounced Mr. Ghaddar in contempt. In reaching this conclusion,
Justice Petras stated that “… the evidence also clearly shows beyond a
reasonable doubt that [Mr. Ghaddar] is refusing to cooperate in any fashion
whatsoever with respect to this matter and has expressly decided to ignore the
judgments and orders of this Superior Court”.
[15]
In these circumstances, I have no
difficulty in finding that the children were legally resident with the Appellant.
During the Period, they were simply too young, too small and too vulnerable to
have had any say in the matter of their residency. But for their father’s
wrongful detention of them in Lebanon, the little girls would have been physically present
in Canada; but for his illegal abduction, in their mother’s care; but for his
contempt, in her sole custody. In these circumstances, to find that the
children are “resident” in Lebanon would be tantamount to condoning Mr. Ghaddar’s
illegal acts thereby bringing the administration of justice into disrepute. At
all times during the Period (and indeed, to the present day) the Appellant has
been the girls’ safe harbour. Their residence is with her.
[16]
In reaching this conclusion, I am
mindful that the definition of “reside”, meaning “to live in the same house as”, is more typically applied
in CCTB decisions. But there are some cases where, in the unusual circumstances
of the case, the Court has found residency to exist even when the parent and
child were not physically present in the same abode: in Bouchard v. R. , for example, where the
father was incarcerated; in Penner v. R. ,
where the child was at boarding school; and in Attia v. R. , where the children were
also abducted.
Residency is a question of fact that can only be decided in the particular
circumstances. The legislative objective of putting financial resources in the
hands of the parent upon whom the children are dependent for their care and
well being must also be respected. In the present matter, the only person
fulfilling that role was the Appellant.
[17]
The next question is whether the
Appellant was the parent who primarily fulfilled the responsibility for the
care and upbringing of the children. Under paragraph (h) of the
definition, to determine whether the Appellant is the primary caregiver, the
Court must consider the prescribed factors set out in section 6302 of the Income
Tax Act Regulations;
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 dependant;
(b) the
maintenance of a secure environment in which the qualified dependant resides;
(c) the
arrangement of, and transportation to, medical care at regular intervals 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
dependant;
(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 dependant 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.
[18]
It is clear from the case law dealing
with Regulation 6302 that not every one of these factors will be applicable in
every case. For example, if the children are no longer of an age to require the
parent to see to their hygienic needs, paragraph (f) will not apply; if
the child was never sick during the relevant period, paragraph (e) may
have no application.
[19]
In the present case, Mr. Ghaddar’s
illegal conduct has rendered inapplicable all but paragraphs (h) and, to
some extent, (b) of the above factors. In respect of paragraph (h),
the Appellant obtained three valid court orders during the Period: two
pronouncing the children to be in her custody and resident with her in Quebec and a
third condemning Mr. Ghaddar for his failure to respect such orders. These orders
were based on the Court’s findings of fact as to the state of affairs that
existed throughout the Period. As for (b), her efforts to return the
children safely to Canada through all legal means available are not inconsistent
with “the maintenance of a secure environment” for the children in that place
of residence.
[20]
In the unique circumstances of
this appeal and recognizing that this decision is without precedential value, I
am satisfied that the children were resident with the Appellant and that she was
the parent who primarily fulfilled the responsibility for the care and
upbringing of the children during the Period.
[21]
For the above reasons, the appeal
is allowed and the Minister’s reassessment is vacated.
Signed at Ottawa, Canada, this 6th day of August 2010.
“G.A. Sheridan”
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