Date: 20020624
Docket:
2002-51-IT-I
BETWEEN:
MICHELLE M.
WISHART,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasonsfor Judgment
O'Connor,
J.T.C.C.
[1]
The Appellant has been asked to repay $1,026.74 of Canadian Child
Tax Benefits ("CCTB") and $313.55 of British Columbia
Family Benefits ("BCFB") for a total of
$1,340.29.
[2]
Johnathan Ryan was born January 10, 1992. His mother had
considerable psychological problems and Johnathan's custody
was taken over by the mother's sister who is the Appellant in
this appeal.
[3]
Johnathan was taken into care by the British Columbia Ministry
for children and families ("Ministry") on December 4,
2000. While in such care the overpayments in questions were
made.
[4]
While in such care Johnathan received many visits from the
Appellant and shared many meals with the Appellant who prepared
them.
[5]
One of the main contentions of the Appellant is that she was
under the impression that the stay with the Ministry for
Johnathan would be relatively temporary and that she was
maintaining a residence for him upon his expected
return.
[6]
The position of the Canada Customs and Revenue Agency
("CCRA") is substantially set forth in paragraph 5 of
the Reply to the Notice of Appeal. That paragraph reads as
follows:
5.
In so notifying the Appellant, the Minister relied on the
following assumptions:
a)
Johnathan was taken into care by the Ministry on 4th
December 2000;
b)
from 4th December 2000 Johnathan did not reside with
the Appellant;
c)
the Ministry had custody of Johnathan; and
d)
Johnathan, for the period in respect of which the Appellant
received Benefits, was a person in respect of whom a special
allowance under the Children's Special Allowances Act
was payable.
While Johnathan was in the
care of the Ministry he lived with foster parents at
times.
[7]
Section 122.6 of the Income Tax 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)
...
[8]
Section 122.6 of the Act defines "qualified
dependant" as follows:
"qualified
dependant" at any time means a person who at that
time
(a)
has not attained the age of 18 years,
(b)
... and
(c)
is not a person in respect of whom a special allowance under the
Children's Special Allowances Act is payable for the
month that includes that time;
[9]
In paragraph 5 d) of the Reply the Minister has made the
assumption that Johnathan for the period in question was a person
in respect of whom a special allowance under the
Children's Special Allowances Act was payable. This
assumption has not been disproven and is therefore assumed
true.
[10]
Section 3 of the Children's Special Allowances Act,
40-41 Eliz. II reads as follows:
3.
(1) Subject to this Act,
there shall be paid out of the Consolidated Revenue Fund, for
each month, a special allowance in the amount determined for that
month by or pursuant to section 8 in respect of each child
who
(a)
is maintained
(i)
by a department or agency of the government of Canada or a
province, or
(ii)
by an agency appointed by a province for the purpose of
administering any law of the province for the protection and care
of children,
and who resides in the
private home of foster parents, a group foster home or an
institution; or
(b)
is maintained by an institution licensed or otherwise authorized
under the law of the province to have the custody or care of
children.
(2)
A special allowance shall be applied exclusively toward the care,
maintenance, education, training or advancement of the child in
respect of whom it is paid.
[11]
Although the Appellant contributed significantly to the proper
upbringing of Johnathan, Johnathan did not reside with her and
moreover Johnathan was a person in respect of whom a special
allowance under the Children's Special Allowances Act
was payable for the period in question.
[12]
Consequently the Appellant was not the eligible individual and
moreover Johnathan did not fit the definition of a qualified
dependant because of the Children's Special Allowance
Act payments. For these reasons the appeal is dismissed and
the Benefits as defined in the Reply are to be repaid to the
Minister.
Signed at
Ottawa, Canada this 24th day of June, 2002.
"T, O'Connor"
J.T.C.C.
COURT FILE
NO.:
2002-51(IT)I
STYLE OF
CAUSE:
Michelle M. Wishart v. The Queen
PLACE OF
HEARING:
Vancouver, British Columbia
DATE OF
HEARING:
June 4, 2002
REASONS FOR JUDGMENT
BY: The Honourable Judge Terrence
O'Connor
DATE OF
JUDGMENT:
June 24, 2002
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Nadine Taylor
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2002-51(IT)I
BETWEEN:
MICHELLE M. WISHART,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on June 4, 2002 at Vancouver,
British Columbia, by
the Honourable Judge Terrence
O'Connor
Appearances
Counsel for the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Nadine Taylor
Fiona Hughes, Student-at-law
JUDGMENT
The appeal from the determination made under the Income Tax
Act in respect of the Child Tax Benefit for the period after
December 4, 2000 is dismissed in accordance with the attached
Reasons for Judgment and the Benefits as defined in the Reply are
to be repaid to the Minister.
Signed at Ottawa, Canada, this 24th day of June,
2002.
J.T.C.C.
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