Citation: 2013 TCC 342
Date: 20131028
Docket: 2012-4535(IT)I
BETWEEN:
PETER GUERRERO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1]
This is an appeal under
the informal procedure from the redeterminations made by the Minister of
National Revenue (the Minister) with regard to the Canada Child Tax Benefit (the
CCTB) for the 2009 (period from November 2010 to June 2011) and 2010 (period
from July 2011 to April 2012) base taxation years in respect of the appellant's
son.
[2]
The issue is whether
the appellant is the eligible individual who has the right to receive the CCTB
for the periods covered by the redeterminations on the basis that he was the
parent who primarily fulfilled the responsibility for the care and upbringing
of his child, in accordance with section 122.6 of the Income Tax Act,
R.S.C. 1985 c. 1 (5th Supp.) as amended (the Act).
[3]
By notices of
redeterminations with regard to the CCTB dated May 18, 2012, the Minister
determined that the appellant was not the eligible individual in respect of his
son for the 2009 and 2010 base taxation years.
[4]
By notice of
redetermination regarding the CCTB dated October 18, 2012, the Minister
determined, with respect to the 2010 base year (period from August 2011 to
March 2012), that the appellant had shared custody of his son and that he was
eligible to receive half of the applicable monthly benefit for the period in
question. The appellant does not challenge this redetermination regarding the CCTB
with respect to the 2010 base year, except for the month of July 2011.
[5]
The Court also held
that it did not have jurisdiction over the appeal regarding the Universal Child
Care Benefit paid pursuant to section 4 of the Universal Child Care
Benefit Act.
[6]
To establish and
support the redetermination for the 2009 base year and the redetermination for
the 2010 base year, the Minister made the following assumptions of fact, set
out at paragraph 6 of the Reply to the Notice of Appeal:
[translation]
a.
the appellant and Jessica Romero Rico are the
parents of the child D.A. born in 2007; (admitted)
b.
the parties have been living separate and apart
since September 2010 and obtained their divorce on May 18, 2011; (admitted
for the separation date but denied for the divorce date)
c.
from September 2010 to November 2010, the ex‑wife
had full custody of the child; (denied because the ex‑wife did not have
full custody of the child)
d.
from December 16, 2010, to July 2011, the
parties shared custody of the child, who lived four days with his mother and
three days with his father; (admitted)
e.
from July 2011 to March 2012, the child resided
on a more or less equal basis between the parties, hence each of them was
entitled to half of the monthly payment applicable to the CCTB for the period
in question; (admitted)
f.
the ex‑wife has had full custody of the
child since April 2012; (admitted)
g.
the appellant has been married to a non‑resident
of Canada since August 30, 2011; (admitted)
h.
the appellant did not submit his new spouse's
income for the year 2010 to the Minister. (denied)
[7]
The appellant testified
at the hearing and noted the following important dates:
•
date of the marriage in
Colombia: August 8, 2006
•
date of son's birth: August 24,
2007
•
date of immigration to
Canada: February 28, 2010
•
date the son began
going to daycare: July 19, 2010
•
date of the couple's
separation: September 2010
•
date of the couple's divorce:
March 22, 2013
[8]
According to the
appellant, Jessica Romero Rico left the family home when they separated, and
their son continued to live with his father at 610 McGregor Street, Apt. 43 in
Sherbrooke from September to November 2010. Throughout this period, the
appellant worked for IBM in Bromont. He was in manufacturing, and his work
schedule was from midnight Friday to noon Saturday, midnight Saturday to noon
Sunday and midnight Sunday to 8:00 a.m. Monday. During this period, the
appellant had custody of his son from Monday afternoon to Friday morning, and
his ex‑wife had custody of him from Friday afternoon to Monday morning.
The exchange of the child usually took place at the daycare. The child's home
address on the daycare registration form was that of the appellant, but the
child care expenses were paid by his mother. According to the appellant, the
daycare called him if the child was ill.
[9]
For the period from
December 16, 2010, to July 2011, the rights of the appellant and his
ex-wife were governed by an agreement dated December 16, 2010, which was homologated
by the Superior Court (Family Division) the same day. Under the terms of this
agreement, the parents had joint custody of their child; the appellant's ex‑wife
had custody of the child from Friday evening to Tuesday morning, and the
exchange took place at the daycare or at the Pharmaprix located at the Carrefour
de l’Estrie when the child was not going to the daycare. Beginning
December 16, 2010, the appellant was required to pay child support to his
ex‑wife in the amount of $149.58 per month payable in advance, on the
15th and last day of each month, at the rate of $74.79 each time.
[10]
Jessica Romero Rico also
testified at the hearing. Inter alia, she stated that, when she
separated from the appellant, she took her son with her and that it was not
until 21 days after their separation that the appellant become concerned about
the child. After the separation, she had to find a new apartment. She had
problems finding one because she was unemployed. In the meantime, she lived at
her new boyfriend's apartment.
[11]
Ms. Rico submitted to
the Superior Court (Family Division) a detailed affidavit dated
December 14, 2010, in support of her motion for joint custody of her son.
Paragraphs 9 of 15 of this affidavit are pertinent for the purposes of this
dispute:
[translation]
9. After
cohabitation ended, our child D.A. lived with me during the week and with the applicant
on the weekends;
10. This
custodial arrangement continued until the end of October 2010;
11.
As of October 2010, the applicant and I agreed
that our child would live with the applicant from Monday to Friday and with me
from Friday to Monday morning;
12.
This agreement was only temporary because I did
not have a car at that time to transport our child to the daycare;
13.
The applicant and I agreed that when I had car
or a means of transporting our child to the daycare, we would share custody;
14.
The applicant refuses to comply with this
agreement now that I have a new partner in my life;
15.
When the applicant and I lived together, I was
the one who primarily looked after our child D.A.; the applicant went out on a
regular basis and was rarely at home;
[12]
Ms. Rico explained
that the agreement referred to in paragraph 11 of the affidavit was temporary
because she did not have a car to transport her son to the daycare. This
agreement lasted only one month, from mid‑October to mid‑November
2010. According to her, she was the eligible parent who primarily looked after
her child even during that period. She ensured that her son was fed and that
his clothes were clean. She always dealt with her child's medical appointments.
Analysis and
conclusion
[13]
To receive the CCTB, a
person must be an eligible individual. This expression is defined in
section 122.6 of the Act whose relevant passages for the purposes of this
dispute are as follows:
"eligible
individual" - "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 a parent of the qualified dependant who
(i)
is the parent who primarily fulfils the responsibility for the care and upbringing
of the qualified dependant
.
. .
and
for the purposes of this definition:
(f)
where the qualified dependant resides with
the dependant’s female parent, the parent who primarily fulfils the
responsibility for the care and upbringing of the qualified dependant is
presumed to be the female parent,
(g) the presumption referred to in 122.6 eligible individual (f)
does not apply to prescribed circumstances and
(h)
prescribed factors shall be considered in
determining what constitutes care and upbringing;
[14]
The factors that
determine what constitutes care and upbringing of a qualified dependant are set
out in section 6302 of the Income Tax Regulations as follows:
Section
6302
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;
(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.
[15]
For the period from
September to November 2010, it is difficult to determine with certainty whom
the child was residing with and which of the two parents was primarily fulfilling
the responsibility for the care and upbringing of their child given the
inconsistencies in the testimony of both parents.
[16]
According to Ms. Rico's
detailed affidavit, following the couple’s separation, the child was residing
with her during the week and with the appellant on weekends. This custodial
arrangement continued until the end of October 2010. As of October 2010, the
appellant and his ex‑wife agreed that the child would live with the
appellant from Monday to Friday and with his mother from Friday to Monday
morning.
[17]
In a letter dated
May 31, 2012, to the Canada Revenue Agency (the CRA), the appellant stated
that his son had lived with him full‑time from October 12, 2010, to
December 16, 2010.
[18]
The ex‑wife’s
version seems to me to be closer to reality considering that the appellant was
working in Bromont and had a weekend work schedule. In any event, I find that
the child resided with both of his parents in a given week with the result that
both parents met the requirement in paragraph (a) of the definition of
eligible individual.
[19]
It is important now to
determine which of the parents primarily fulfilled the responsibility for the
child's care and upbringing.
[20]
Based on the evidence,
it appears that during September and October 2010 the appellant's ex-wife had custody
of the child during the week (5 days) while the appellant had custody of him on
the weekends (2 days). In November and December 2010, the custody days were
changed; the appellant had custody of the child during the week (5 days) and
his ex‑wife had custody on the weekends (2 days).
[21]
The child was
registered in the daycare in July 2010 before the couple had separated. The
address on the child's daycare registration form was the appellant's, but the
child care expenses were paid by the child's mother.
[22]
Ms. Rico testified
that she primarily looked after the child. She ensured that her son was fed and
that his clothes were clean at the daycare. She dealt with medical
appointments. However, the appellant stated that he had brought his son to the
hospital once and that the daycare called either parent when the child was
sick.
[23]
On the basis of the
facts described below, I find that, for the months of September to November
2010, Ms. Rico was the individual eligible to receive the CCTB. Ms. Rico
fulfilled a greater share of the responsibility for the care and upbringing of
her child than the appellant.
[24]
For the period from
December 2010 to July 2011, a Superior Court order gave custody of the child to
the mother from Friday evening to Tuesday morning (4 days) and to the father
for the rest of the week (3 days). Through the same order, the appellant became
responsible for paying child support to his ex‑wife in the amount of
$149.58 per month effective December 16, 2010.
[25]
The fact that the
appellant's ex‑wife had custody of the child for more days and the fact
that the appellant had to pay child support to her clearly tend to demonstrate
that the child's mother was primarily fulfilling the responsibility for the
care and upbringing of the child and that the mother is the individual eligible
to receive the CCTB for this period.
[26]
In conclusion, the
appellant has discharged his burden of rebutting the Minister's assumption that
his ex‑wife had sole custody of the child during the months of September
to November 2010, but the appellant has not discharged his burden of proving
that he was the parent who primarily fulfilled the responsibility for the care
and upbringing of his son during the periods in question. Therefore, the
Minister's redeterminations are confirmed, and this appeal is dismissed.
Signed at Ottawa, Canada, this 28th day of
October 2013.
“Réal Favreau”
Translation certified true
on this 10th day
of December 2013
Mary Jo Egan,
Translator
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