AMENDED
REASONS FOR JUDGMENT
V.A. Miller J.
[1]
The issue in this appeal is whether the
Appellant is entitled to receive the Canada Child Tax Benefit (“CCTB”) for his
children for the 2009, 2010, 2011 and 2012 base taxation years.
Preliminary Motion
[2]
At the commencement of the hearing, counsel for
the Respondent made a motion to quash the appeal for the 2011 and 2012 base
taxation years on the basis that the Appellant had not served Notices of
Objection for those periods.
[3]
The Appellant withdrew his appeal with respect
to the 2012 base taxation year and I found, on the evidence before me, that the
Appellant had served a Notice of Objection for the 2011 base taxation year.
Facts
[4]
The witnesses at the hearing were the Appellant
and his former spouse, Sherry Requeima.
[5]
The Appellant and his former spouse have three
children:
JML who was born
November 15, 1993;
LAL who was born
April 20, 1995; and,
LFL who was born
January 24, 1997.
[6]
Pursuant to a Consent Judgment dated December 6,
2001, the Appellant and his former spouse agreed to have joint custody of the
three children. They also agreed that for each two week period, the children
would be with the Appellant for 6 days and with his former spouse for 8 days.
[7]
According to the Appellant, he always received
50% of the CCTB. Initially, he and his former spouse each received it for six
months of each year. After July 2011, he and his former spouse each received
50% of the CCTB each month.
[8]
It appeared that the 6/8 rotation cycle was
maintained for many years. However, by notices dated September 20, 2013, the
Minister of National Revenue (the “Minister”) determined that the Appellant was
not an eligible individual for the children for the following periods:
a)
JML – November 2009 to November 2011;
b) LAL – March 2012 to April 2013;
c)
LFL – March 2012 to February 2013
[9]
At the hearing, the Appellant stated that the
children did not maintain the 6/8 rotation cycle. They were not with him and
they resided with his former spouse. (See pages 23 and 24 of the transcript)
for the following periods:
a)
JML – July 2010 to October 2011;
b) LAL – January 2013 to April 2013;
c)
LFL – July 2012 to January 2013.
[10]
Therefore, I must decide whether the Appellant
was a shared-custody parent during the following periods (I will refer to these
periods as the periods in issue):
a)
JML – November 2009 to June 2010; - (JML became
18 in November 2011)
b) LAL – March 2012 to December 2012;
c)
LFL – March 2012 to June 2012, and February
2013.
[11]
Section 122.6 of the Income Tax Act defines
shared-custody parent as follows:
“shared-custody
parent” in respect of a qualified dependent [sic] at a particular time means,
where the presumption referred to in paragraph (f) of the definition “eligible
individual ” does not apply in respect of the qualified dependant, an
individual who is one of the two parents of the qualified dependant who
(a) are not at
that time cohabitating spouses or common-law partners of each other,
(b) reside with
the qualified dependant on an equal or near equal basis, and
(c) primarily
fulfil the responsibility for the care and upbringing of the qualified
dependant when residing with the qualified dependant, as determined in
consideration of prescribed factors,
[12]
Accordingly, I must decide whether the children
resided with the Appellant on an equal or near equal basis during the periods
in issue.
[13]
The Appellant and his former spouse disagreed on
where the children lived during the periods in issue. However, it is my view
that the Appellant has not dislodged the assumptions of fact made by the
Minister and that during the periods in issue, the children resided full time
with the former spouse. My conclusion is based on the following.
[14]
According to both the Appellant and his former
spouse, when JML became 16, he lived full time with the former spouse and no
longer maintained the 6/8 rotation cycle. JML became 16 in November 2009. At
one point in his evidence, the Appellant stated that JML lived with him for
three weeks or a month during the period November 2009 to June 2010. His
evidence was vague and imprecise. The former spouse testified that after
November 2009, JML may have stayed with the Appellant for a few days in
November but she denied that he lived with the Appellant for three weeks or a
month. It was also apparent from the Appellant’s evidence that around the time
that JML became 16, he and JML did not get along.
[15]
I have accepted the former spouse’s evidence and
have concluded that JML did not reside with the Appellant during the period
November 2009 to June 2010. JML may have stayed at the Appellant’s home for a
few days in November 2009 but he did not reside with the Appellant. The word
“reside” usually means “to live in the same house as”: Burton v. R,
[2000] 1 CTC 2727 (TCC). In the context of section 122.6, the word “resides”
has been interpreted to connote “a settled and usual abode”: R (S) v R,
2003 CarswellNat 2710 (TCC). During the period November 2009 to June 2010, JML
resided with the former spouse.
[16]
It is my view that neither LAL nor LFL continued
the 6/8 rotation cycle and they resided with the former spouse full time for
the periods at issue. My view is based on the following evidence.
[17]
The former spouse testified that LAL maintained
the 6/8 rotation cycle until she was 16 which was March 2012. At that time, she
did not want to continue going back and forth between two homes and she decided
to reside full time with the former spouse. Apparently, LFL did not want to be
the only child staying with the Appellant and in March 2012, she as well
started to reside full time with the former spouse.
[18]
According to the former spouse, LAL’s decision
to reside with her full time was also based on the fact that the Appellant had
moved into his fiancée’s home. The Appellant’s stated that he moved into his fiancée’s
home in February 2012. It is my view that the Appellant’s evidence confirmed
the former spouse’s evidence with respect to the date that LAL and LFL moved in
with her.
[19]
Both witnesses agreed that LFL moved into the
Appellant’s home on a full time basis on February 24, 2013.
[20]
In conclusion, the children did not maintain the
6/8 rotation cycle and they resided with the former spouse full time during the
following periods:
JML – November
2009 to November 2011
LAL – March 2012
to April 2013
LFL – March 2012
to February 2013.
[21]
At the hearing, the Appellant stated that four
of the Minister’s assumptions were incorrect because the amount referred to as
CCTB in those paragraphs included the National Child Benefit Supplement
(“NCBS”) and there was no mention of the NCBS in the Minister’s Reply.
[22]
With respect, the assumptions pled by the
Minister were not inaccurate. The NCBS is part of the CCTB and is included in
the formula for the calculation of CCTB.
[23]
The appeal is dismissed.
These
Reasons for Judgment are issued in substitution for the
Reasons for Judgment dated May 11, 2015
Signed at Ottawa, Canada, this 21st day of May 2015.
“V.A. Miller”
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