Docket:
2013-318(IT)G
BETWEEN:
SAMI AGREBI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
Appeal heard on April 17, 2014, at Montreal, Quebec.
Before: The Honourable Justice
Gaston Jorré
Appearances:
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For the Appellant:
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The Appellant
himself
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|
|
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Counsel for the Respondent:
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Alain Gareau
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JUDGMENT
In accordance with the attached Reasons for Judgment, the appeal
from the determinations made under the Income Tax Act for the 2008 and
2009 base years with respect to the goods and services tax credit, and for the
2005, 2006, 2007, 2008 and 2009 taxation years with respect to the Canada child
tax benefit, is dismissed.
Under the circumstances, no costs will be awarded.
Signed at Ottawa, Ontario, this 9th day of May 2014.
“Gaston Jorré”
Translation certified true
on this 27th day of November 2014.
Erich Klein,
Revisor
Citation:
2014 TCC 141
Date: 20140509
Docket: 2013-318(IT)G
BETWEEN:
SAMI
AGREBI,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Jorré J.
Issue
[1]
The appellant is appealing determinations made with
respect to the Canada child tax benefit and the goods
and services tax credit.
[2]
One of the essential conditions to be met in
order for a person to be the “eligible individual” for the purpose of receiving
the child tax benefit and the GST credit is being resident in Canada.
[3]
The Minister of National
Revenue admits that the appellant became a resident of Canada
again on July 24, 2010, and that, consequently, he is entitled to receive the Canada child tax benefit and the GST credit as of August 2010.
[4]
At issue is whether the appellant was resident
in Canada in 2005, 2006, 2007, 2008 and 2009 and during the period from January 1 to July 23, 2010, as he contends, or
whether he was not, as the respondent contends.
Facts
[5]
The appellant is from Tunisia and is a Tunisian
citizen. He obtained a work permit and came from Tunisia to work in Canada. While
he was in Canada, he got married in May 2001. In April 2002, the appellant and
his wife became parents of a daughter.
[6]
On May 31, 2001, Citizenship and Immigration Canada
decided to execute a removal order against the appellant. The effect of this order
was to oblige the appellant to leave the country, which he did on December 16,
2004.
[7]
The removal order also had as a consequence the
termination of his Canadian work permit.
[8]
The mother was not able to take care of the
child and there was no one else in Canada who could do so.
[9]
Consequently, the mother authorized the
appellant to take their daughter with him and the appellant and his daughter
left for Tunisia, his country of origin, in December 2004.
[10]
The appellant and his daughter remained in
Tunisia until he returned to Canada on July 24, 2010. Before his arrival in Canada
the first time and during the entire period at issue, the appellant was a Tunisian
citizen.
[11]
The appellant resided with his parents in
Tunisia. He received considerable financial support from his family. In
addition, his sisters helped him raise his daughter.
[12]
The appellant’s wife remained in Canada.
[13]
While he was in Tunisia, the appellant and his
wife took steps to enable him to return to Canada. In particular, his wife filed applications to sponsor a member of the
family class.
[14]
At last, their efforts were successful and the
appellant and his daughter returned to Canada in July 2010.
[15]
The period during which the appellant was in
Tunisia was difficult and all of these events have caused serious problems for his
daughter. The appellant’s current situation continues to be difficult.
Analysis
[16]
The issue before me is very specific: was the
appellant resident in Canada from January 1, 2005, to July 23, 2010, a period
of approximately five and a half years?
[17]
During that period the appellant was not in Canada and could not legally enter Canada.
[18]
The appellant submits that he remained a
resident of Canada because he left involuntarily.
[19]
Determining whether a person is resident is a
question of mixed fact and law. There is considerable case law on the subject.
[20]
As the Federal Court of Appeal recognized in Canada v. Laurin:[3]
2 ... a person is resident in
the country where he or she, in the settled routine of life, regularly,
normally or customarily lives, as opposed to the place where the person
unusually, casually or intermittently stays. . . .
[21]
During the period of more than five years in
question, the appellant, a Tunisian citizen, had significant ties to Tunisia. He
lived in Tunisia with his daughter at his parents’ home. He had a bank account in
Tunisia.
[22]
During that period, his wife was in Canada and
he wanted to return to Canada,
but he did not have the right to enter Canada. Until he obtained a visa, there
was no certainty that he would succeed in returning to Canada.
[23]
Under such circumstances, I do not see how I
could find that the appellant “regularly, normally or customarily” lived in
Canada during the period of more than five years in question.
[24]
Consequently, I must find that the appellant was
not resident in Canada during the period
in question. The appeal is dismissed.
Signed at Ottawa, Ontario, this 9th day of
May 2014.
“Gaston Jorré”
Translation
certified true
on this 27th day of
November 2014.
Erich Klein,
Revisor
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