Nelson v. The Queen, docket 2001-971-IT-I (Informal Procedure)

Date: 20020604

Docket: 2001-971-IT-I

BETWEEN:

MARTHA NELSON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasonsfor Judgment

Angers, J.T.C.C.

[1]            This appeal under the informal procedure was heard in Montreal on April 12, 2002. The Appellant is appealing a determination of child tax benefit dated June 20, 2000, wherein the Minister of National Revenue (the "Minister") assessed the Appellant with an overpayment of $593.75 for the 1997 base taxation year and of $1,036.26 for the 1998 base taxation year. The issue is whether the Appellant was the eligible individual in respect of the qualified dependant — her son Michael Dubois, born on June 23, 1990 — for the period from February 1, 1999 to July 1, 1999 for the 1997 base taxation year, and for the period from December 1, 1999 to June 1, 2000 for the 1998 base taxation year.

[2]            At the beginning of the hearing, counsel for the Appellant admitted the following facts, as set out in paragraph 8 of the Reply to the Notice of Appeal:

a)              The child tax benefit as per paragraph 4 was paid to appellant for the period July 1, 1998 and June 1, 1999 on a monthly instalment basis, 1st month at $254.24 and the remaining 11 months at $254.16.

b)             The child tax benefit as per paragraph 5 was paid to appellant for the period July 1, 1999 and June 1, 2000 on a monthly basis as follows; July 1, 1999 $156.86 and August 1 1999 to October 1, 1999 at $156.91 per month and the remaining 8 months at $78.46 per month.

c)              The appellant and cohabiting spouse, Robert Dubois were living together until January 1, 1999 at which time the appellant left the cohabiting spouse and family residence to assist at the reestablishment of her daughter who had left the family residence.

g)             Based upon the applications received from Mr. Robert Dubois the Minister send [sic] a questionnaire, February 11, 2000 to the appellant and Mr. Robert Dubois.

h)             On June 20, 2000 based upon a review of the replies on the questionnaires the Minister determined that the appellant was the eligible individual for the qualified dependant, Michael, for the periods July 1, 1998 to January 1, 1999 and August 1, 1999 to November 1, 1999.

[3]            Counsel for the Appellant denied or said she had no knowledge of the following facts:

d)             The appellant officially separated from the cohabiting spouse on June 23, 1999 and returned to live with the qualified dependant, the son.

e)              By way of Canada Child Tax Benefit Application, dated July 13, 1999 Mr. Robert Dubois applied for the child tax credit for the qualified dependant, the son Michael, as the qualified dependant had been living with him since January 1, 1999.

f)              Canada Child Tax Benefit Application, dated April 14, 2000 Mr. Robert Dubois applied for the child tax credit for the qualified dependant Michael Dubois as the qualified dependant had been living with him since January 1, 1999; a change for beneficiary of the child tax credit was also made requesting that he be the beneficiary from January 1, 1999 as the qualified dependant, the son, was residing with him.

[4]            The Appellant and her former spouse were never married. They lived together with their only son until her former spouse asked her to give him her keys to the house and to leave in July 1999. According to the Appellant, she left the family home in mid-July and stayed with her daughter for a short period until she was able to find a place of her own. She succeeded in doing so and, on August 28, 1999, she moved with her son Michael into an apartment where they still reside. There are no court orders respecting custody, maintenance or access as regards the child.

[5]            Starting in January 1999, the Appellant spent approximately three months with her daughter to help her settle in at her new home in Oka, Quebec. This became necessary as a result of an unexplained incident involving her daughter. During this time, she kept in contact with her former spouse and son, as she would call them frequently and visit them on weekends. In April 1999, she returned to the family home to live with them.

[6]            She testified that, in 1999, she and her former spouse both helped Michael with his schooling. She would care for her son on a regular basis and spend time with him. In a questionnaire (Exhibit R-1) the Appellant described how she and her former spouse shared the child care responsibility for the first three months of 1999 but indicated that she resumed her usual role thereafter and continues to fulfil that role today.

[7]            The Appellant's daughter, Leslie Nelson, provided corroboration regarding the period that her mother spent with her in 1999; she left at the end of March. Leslie Nelson was aware that her mother had had to leave her former spouse in July 1999 and that Michael was with her in early September 1999. She went to see her mother some weekends and, according to her, the former spouse only visited Michael every second weekend. Leslie Nelson believes that Michael is very happy with his mother.

[8]            The former spouse, Mr. Robert Dubois, testified that the Appellant went to help her daughter in January 1999. According to him, she returned home the third week of April 1999. During the time she was away, she came home on weekends and would also phone home. He testified as well that, during that period, they shared the responsibilities for Michael. On her return in April 1999, they stayed together with Michael until the end of June when the Appellant found a place of her own. Mr. Dubois testified that he visited his son most weekends in August and September 1999. The Appellant and their son stayed with him for short periods in December 1999 and March 2000, he said, but he confirmed that Michael is now residing with his mother at her apartment. Mr. Dubois testified that his involvement with his son included homework, leisure occupations and attending to other needs when Michael was with him at his home. Mr. Dubois identified a questionnaire (Exhibit R-2) that he answered for the Respondent and that corroborates his evidence.

[9]            In order to receive the Canada Child Tax Benefit, the Appellant must prove that she was the eligible individual for the period from February 1, 1999 to July 1, 1999 and for the period from December 1, 1999 to June 1, 2000.

[10]          Section 122.6 of the Income Tax Act (the "Act") defines "eligible individual" as follows:

"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,

(c) is resident in Canada or, where the person is the cohabiting spouse of a person who is deemed under subsection 250(1) to be resident in Canada throughout the taxation year that includes that time, was resident in Canada in any preceding taxation year,

(d) is not described in paragraph 149(1)(a) or (b), and

(e) is, or whose cohabiting spouse is, a Canadian citizen or a person who

(i) is a permanent resident (within the meaning assigned by the Immigration Act),

(ii) is a visitor in Canada or the holder of a permit in Canada (within the meanings assigned by the Immigration Act) who was resident in Canada throughout the 18 month period preceding that time, or

(iii) was determined before that time under the Immigration Act, or regulations made under that Act, to be a Convention refugee,

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 paragraph (f) does not apply in prescribed circumstances, and

(h) prescribed factors shall be considered in determining what constitutes care and upbringing.

[11]          Section 6302 of the Income Tax Regulations (the "Regulations"), which appears in Part LXIII of those Regulations, lists a series of factors to be considered in determining what constitutes care and upbringing of a qualified dependant. Section 6302 reads as follows:

6302. Factors — 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.

[12]          Issues of this nature usually arise when parents of qualified dependants separate. The question of residence and of which parent primarily fulfils the responsibility for the care and upbringing of the qualified dependant then becomes an issue before this Court. Prior to the events described that took place in 1999 and part of the year 2000, the Appellant was the eligible individual, as she was as well during the periods not in issue with respect to those years.

[13]          From the evidence, I am able to conclude that the Appellant and her former spouse became separated only upon her return from Oka, where she had gone to provide assistance to her daughter. Neither the Appellant nor Mr. Dubois referred to the time the Appellant was helping her daughter as the time of the break-up of their relationship. Both testified that upon her return, they lived together with their son Michael, but not as husband and wife. Both testified as well that they jointly cared for Michael during the Appellant's stay with her daughter and that she came home on weekends and kept in touch by telephone. I believe that the Appellant's stay with her daughter was for humanitarian reasons, being a fulfilment of a mother's responsibility and therefore temporary in nature. I find that during that period she was still residing with her son, the qualified dependant, and that she maintained her role as primary care giver. She was present on weekends and stayed in contact by telephone. She was generally able to carry out her role in accordance with the factors set out in the Regulations,although daily supervision was left with the former spouse.

[14]          I also find that from the date of her return from Oka, the Appellant was the eligible individual in respect of her son, the qualified dependant. Not only did she continue to reside with her son but, on the whole of the evidence, she was the primary care giver. The actual amount of time she needed to find an apartment in July 1999 is far from clear. Mr. Dubois testified that he began visiting Michael on weekends in August of 1999 while the Appellant believes Michael moved in with her at the end of August. Mr. Dubois also testified that his son was with the Appellant in the summer of 1999.

[15]          I am satisfied that the Appellant fulfilled her responsibilities as regards the care and upbringing of her son during the second period in issue, in accordance with the factors set out in the Regulations. She helped him in his schooling and leisure occupations and cared for him without any financial help from her former spouse. She was with her son when she spent time with her former husband in December 1999 and the spring of 2000. She has therefore continued to fulfil her responsibilities and was her son's primary care giver at all relevant times.

[16]          I therefore allow the appeal and refer the matter back to the Minister for redetermination on the basis set forth in these Reasons for Judgment.

Signed at Edmundston, New Brunswick, this 4th day of June 2002.

"François Angers"

J.T.C.C.

COURT FILE NO.:                                                 2001-971(IT)I

STYLE OF CAUSE:                                               MARTHA NELSON

                                                                                                and Her Majesty the Queen

PLACE OF HEARING:                                         Montreal, Québec

DATE OF HEARING:                                           April 12, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge François Angers

DATE OF JUDGMENT:                                       June 4, 2002

APPEARANCES:

Counsel for the Appellant: Claudette Morin

Counsel for the Respondent:              Philippe Dupuis

COUNSEL OF RECORD:

For the Appellant:                

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2001-971(IT)I

BETWEEN:

MARTHA NELSON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on April 12, 2002, at Montreal, Quebec, by

the Honourable Judge François Angers

Appearances

Counsel for the Appellant:                                       Claudette Morin

Counsel for the Respondent:                                   Philippe Dupuis

JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the periods of July 1, 1998 to June 1, 1999 and July 1, 1999 to June 1, 2000 is allowed, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis set forth in these Reasons for Judgment.

          The whole without costs.

Signed at Edmundston, New Brunswick, this 4th day of June 2002.

"François Angers"

J.T.C.C.