[OFFICIAL ENGLISH TRANSLATION]
Date: 20020619
Docket: 2001-3717(IT)I
BETWEEN:
CAROLE BEAUDOIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the
informal procedure concerning the Canada Child Tax Benefit for
the period from July 1999 to August 2000.
[2] The appellant and Jean-Marc
Soutière testified for the appellant. Pierre Blondin,
the appellant's former spouse, testified at the request of
counsel for the respondent.
[3] The assumptions of fact on which
the Minister of National Revenue (the "Minister")
relied in making his determination concerning the tax benefit are
set out in paragraph 11 of the Reply to the Notice of Appeal
(the "Reply"), as follows:
[translation]
(a) in accordance
with section 122.6 of the Act, the 1998 "base
taxation year" means the months from July 1999 to
June 2000 inclusive;
(b) in accordance
with section 122.6 of the Act, the 1999 "base
taxation year" means the months from July 2000 to
June 2001 inclusive;
(c) the appellant
and Pierre Blondin (the "former spouse") stopped living
together on August 22, 1997;
(d) during the
period at issue, the appellant and the former spouse were the
parents of two children (the "children"):
Jean-François, born August 12, 1992; and
Marie-Andrée, born March 14, 1994;
(e) during the
period at issue, the appellant and the former spouse were the
parents of two "qualified dependants" within the
meaning of section 122.6 of the Act;
(f) the
children lived with the appellant from August 22, 1997, to March
1, 1998;
(g) the children
lived with the former spouse from March 1, 1998, to July 1,
1998;
(h) the appellant
and the former spouse shared custody of the children on the basis
of alternating weeks from August 1998 to June 1999;
(i) under a
June 9, 1999, written agreement between them, the appellant and
the former spouse shared custody of the children on the basis of
alternating weeks from June 1999 to March 2000;
(j) under a
February 10, 2000, Quebec Superior Court judgment, the children
lived with the former spouse during the week and with the
appellant on weekends; and
(k) the appellant
has not established that, during the periods at issue, she was
the person who primarily fulfilled the responsibility for the
care and upbringing of the children.
[4] The Notice of Appeal gives the
following reasons for the appeal:
[translation]
...
On June 9, 1999, an agreement was reached between the parties,
Pierre Blondin and myself, which agreement was ratified by a
judgment rendered by the Honourable Justice Jean R. Dagenais.
Under that agreement, we agreed to shared
alternating custody of the children Marie-André and
Jean-François Blondin, on the basis of alternating
weeks between the parents.
Also under that agreement, Mr. Blondin agreed to be
responsible for all child care costs, including the proportion
corresponding to my weeks of custody, in the amount of
$50.00.
Mr. Blondin also agreed to pay me monthly support payments for
the benefit of the children in the amount of $200.00.
The amount of the support payable for the benefit of the
children was set below the amount provided for in the applicable
legislation and regulations. As well, that agreement was duly
signed by Mr. Blondin and confirms that Mr. Blondin
waives the right to claim family allowances.
Following that judgment, Mr. Blondin refused to make the
support payments. Quebec's Ministère du revenu des
pensions alimentaires was obliged to collect the amount of the
payments from his wages. The atmosphere then deteriorated. In the
fall of 1999, we each submitted an application to change custody
of the children. At the February 2000 hearing, the Honourable
Justice Orville Frenette ordered a psycho-social assessment
regarding custody of the children.
Under the judgment, the children live with their father during
the week and with me every weekend until the assessment report is
submitted. In the February 2000 judgment, Justice Frenette made
no changes to the terms and conditions set out in the June 1999
judgment, which were to apply until the present case is heard on
its merits.
...
[5] The appellant admitted the truth
of subparagraphs 11(a) to 11(f) of the Reply. She denied the
truth of subparagraph 11(g), stating that during this period she
had the children every weekend, plus two days per week, for a
total of four days per week. Concerning subparagraph 11(h) of the
Reply, the appellant stated that this period began in July 1998.
She admitted the truth of subparagraph 11(i). Concerning
subparagraph 11(j), she stated that this period began in
March 2000: the hearing was held in February but the written
documents were received only in March.
[6] The June 11, 1999, Quebec Superior
Court judgment ratifying the agreement between the parties was
adduced as Exhibit A-1. That agreement is referred to
in subparagraph 11(i) of the Reply and in the first
paragraph of the Notice of Appeal. The clauses of that agreement
concerning the children, the support payments for the children,
and the Child Tax Benefit read as follows:
[translation]
...
10
The parties shall jointly have custody of the children
Marie-Andrée and Jean-François, the parties
agreeing to keep the children at the school in the father's
neighbourhood (Lac des Fées);
20
Custody shall be in alternating periods of one full week; the
turnover shall be on Mondays at 4:00 p.m. However, during the
mother's week, the father shall be responsible for taking the
children on Thursday evenings after school until 8:30 p.m. after
which he shall return them to their mothers and on Fridays after
school until 6:30 p.m. after which he shall return them to
their mother's;
30
the father shall be responsible for all child care costs,
including the proportion corresponding to the mother's week
of custody; the parties shall each be responsible for the
purchase of the clothing necessary for their periods of
custody;
40
the father shall pay $200 per month as additional support for the
children, payable on the first day of each month at the
mother's residence until Quebec's Ministère du
revenu intervenes, and then payable in accordance with
Quebec's Act to facilitate the payment of support;
50
the support payments shall be made starting on July 1, 1999, and
shall be indexed annually on January 1 of each year, starting on
January 1, 2000;
60
the mother shall be authorized to receive the family allowances
and the tax benefits for the child Marie-Andrée, subject
to the applicable legislation and regulations;
70
concerning the tax deductions, the father may use the tax
deductions for the child Marie-Andrée and the mother may
use the tax deductions for the child Jean-François if and
when the legislation and regulations so permit.
...
[7] Custody of the children is shared.
The appellant pointed out that, under the agreement, she was
entitled to the Child Tax Benefits and, on that basis, agreed to
lower support payments for her children.
[8] In order to ensure stability in
the children's education, the appellant and her former spouse
decided to place the children in the Lac des Fées school
in August 1999. Mr. Blondin's parents lived in this
neighbourhood, and occasionally he stayed with them. He also
owned a lot located beside his parents' property.
[9] The appellant stated that in the
summer of 1999, she took part in many activities with her
children in the evenings and on weekends. During that summer, the
children attended day camps since both parents are employed. At
the end of August, the children began school. According to the
appellant, her parents-in-law and the children's father
unfortunately did not co-operate with her.
[10] In October, Mr. Blondin took the
children out of the day care centre at the school when, under the
agreement, he was responsible for paying the day care costs. This
situation caused the appellant considerable difficulty. She had
to pick up the children at the home of her parents-in-law, who
were unpleasant to her. She was unable to place the children at
the day care centre during her weeks of custody because of a
requirement that children attend three days per week, every
week.
[11] In March 2000, according to the
appellant, to her great disappointment and dismay, the period of
shared custody came to an end. From Monday evening to Saturday
morning, the children lived with their father. They lived with
their mother from Saturday morning until Monday morning and on
holidays. The February 10, 2000, Superior Court judgment was
adduced as Exhibit A-2.
[12] The appellant stated that, oddly, as
soon as the February 2000 court judgment returned full custody of
the children to their father, he began using the services of the
day care centre once again.
[13] Jean-Marc Soutière,
principal of the Lac des Fées school, testified at the
appellant's request. He explained that, during the period of
shared custody, the appellant was very often at the school. When
she lost custody of the children, she still came to the school
regularly, but he was obliged to inform her that she could not
have access to the teachers or to her children as before; she
would have to meet with the principal, who would keep her
informed on what was happening with her children. Mr.
Soutière stated that the appellant took good care of her
children. He stated that the father, too, loved and took good
care of his children, adding, however, that since the appellant
had obtained full custody of the children, they were doing
better.
[14] Mr. Blondin testified. The
separation took place in August 1997. He admitted taking the
children out of the day care centre from October 1999 to February
2000. He submitted that, during the period at issue, he looked
after the children more than did the appellant and that she was
unreliable.
[15] A document entitled [translation]
"Report for the Court - Youth Division" was
adduced as Exhibit A-4. In particular, this report
recommended that the mother have custody of the children, that
the father have them every other Sunday, and that the parents
communicate with each other through the social workers in order
to protect the children from the adults' battle and avoid
parental alienation that could harm the children's proper
development. Since September 27, 2001, the appellant has had
custody of the children.
Conclusion
[16] Since, under a court judgment, the
father had full custody of the children starting in March 2000
and since the children did in fact live with him, it was he who
was the eligible individual and it was he who was entitled to
receive the Child Tax Benefits.
[17] Before that date, during the period of
shared custody, I consider that it was the appellant who had that
entitlement. I have read the two questionnaires completed by the
children's parents as well as the family relations assessment
reports, and I have heard the evidence; in my opinion, all these
factors point to the importance of the bond that existed during
the period at issue between the mother and her children and the
unremitting supervision and counselling she provided for them. It
is not my intent in so concluding to downplay the role of the
father, who was and continues to be an important figure.
[18] The appeal is granted on the ground
that the appellant was the eligible individual from July 1999 to
the end of February 2000.
Signed at Ottawa, Canada, this 19th day of June 2002.
J.T.C.C.
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