Date:
20020815
Docket:
2001-3582-IT-I
BETWEEN:
DIXIE FUNK,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasons for
Judgment
Bell,
J.T.C.C.
ISSUE:
[1] The issue
is whether the Appellant was, for the period from September 1,
1999 to April 30, 2001, within the meaning of section 122.6 of
the Income Tax Act ("Act"), an
"eligible individual" respecting the "Canada Child
Tax Benefit" ("Benefit").
[2] The term "eligible individual" is defined in that
section 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
or common-law partner 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 or common-law partner is, a Canadian
citizen or a person who
(i) is a
permanent resident (within the meaning of 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,
(iii) was
determined before that time under the Immigration Act, or
regulations made under that Act, to be a Convention refugee,
or
(iv) was
determined before that time to be a member of a class defined in
the Humanitarian Designated Classes Regulations made under
the Immigration Act,
and for
the purposes of this definition,
(f) where
a 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;
[3] The term
"qualified dependant" is defined in section 122.6
as:
"qualified
dependant" at any time means a person who at that time
(a) has
not attained the age of 18 years,
(b) is not
a person in respect of whom an amount was deducted under
paragraph (a) of the description of B in
subsection 118(1) in computing the tax payable under this
Part by the person's spouse or common-law partner for the
base taxation year in relation to the month that includes that
time, 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;
FACTS RELATING TO
WHETHER THE APPELLANT "RESIDES" WITH THE QUALIFIED
DEPENDANT:
[4] Because
the conditions outlined in the above definition are cumulative, I
shall set forth the facts as they relate to each relevant
paragraph commencing with paragraph (a) of the definition
of "eligible individual".
[5] The
Appellant applied for and received the Benefit in respect of the
period from September 1, 1999 to April 30, 2001. A notice dated
May 18, 2001 from the Canada Customs & Revenue Agency
("Revenue") advised her that she was not eligible to
receive the Benefit with respect to that period and sought the
return to it of an overpayment in the sum of $2,900.
[6] During
the period in question the Appellant and Todd Trueman
("Todd"), the father of Saxon who was born on October
1, 1985, lived in separate premises.
[7] By virtue
of a Consent Order issued by the Manitoba Queen's Bench
(Family Division) dated April 13, 1995 the Appellant was granted
sole custody of Saxon, with Todd having "reasonable, liberal
access to the said child at such times as the parties may
mutually agree".
[8] Appellant's counsel presented evidence from Margaret
Funk ("Margaret"), the Appellant's mother, and a
Miss Taylor ("Taylor"), a friend of the Appellant and
from the Appellant. Although Margaret's evidence was
substantially hearsay, she stated, with respect to the
Appellant:
Yes, she
did have an extra room and Saxon used to come home on the
week-ends, Friday night to Sunday morning.
She then revised her
statement to refer to Sunday night instead of Sunday morning. On
cross-examination of the Appellant the following exchange took
place:
Q. Saxon Funk,
your grandson, chose to stay with his father -
A. Yes, he
did.
Q. And not with
his mother?
A. That's
right. Well, he didn't really stay with his dad. He stayed
with the grandparents.
[9] On
re-examination, the transcript reads:
Q. On week-ends
he was at your daughter's and during the week mostly he was
with the grandparents?
A.
Right.
[10] Taylor's
evidence included the statement that in the summer of 2000 Saxon,
being a friend of her son, spent at least three weeks of the
month of August at her house. Her other evidence had nothing to
do with residence.
[11] The
Appellant's evidence dealt with conflict and strife between
her and Saxon and was directed substantially towards establishing
that she qualified under paragraph (b) of the above
definition of "eligible individual". At one point she
said, with respect to a calendar she introduced in
evidence:
Throughout
the calendar it states when Saxon was coming home, every week-end
where that was an agreement that my son, now enrolled in
Lindenwood School, which he was not supposed to be, but now was,
and in order to keep everything pretty calm between me and Saxon
I allowed him to be over at his grandparents' to attend
Lindenwood School and the agreement was that he was to come home
every week-end while we worked out our issues.
The Appellant stated
that she kept a room for Saxon. A portion of the Appellant's
evidence reads as follows:
Q. Saxon Funk
went to live with his dad from Mondays through Fridays beginning
in August or September, 1999?
A. He ran away to
his grandparents' home where his dad lived.
[12] Todd testified
that Saxon, in the relevant period, was living with him and
stated:
Permanently, twenty-four hours a day.
He stated that Saxon
went to his mother's place approximately three times in the
twelve month period commencing July, 1999. He added:
And I
believe he might have even slept there once, maybe
twice.
He testified that he
had applied for a Benefit.
On cross-examination
the following exchange took place between Todd and
Appellant's counsel:
Q.
I put it to you that he was
there regularly on the week-ends. Do you agree or not?
A. I completely
and utterly disagree.
This was with reference
to the Appellant's residence.
ANALYSIS AND
CONCLUSION:
[13] The evidence of
the Appellant and of Todd respecting the question of where Saxon
resided was markedly different. Obviously, the evidence of one or
both such witnesses is at variance with the actual
facts.
[14] I noted at the
hearing that Saxon, who was then in his 17th year, was not
present in Court to give evidence. His testimony would have been
of great assistance to the Court in determining where he resided
during the period in question. In Blatch v. Archer,
(1774), I Cowp. 63, at p. 65 Lord Mansfield stated:
It is
certainly a maxim that all evidence is to be weighed according to
the proof which it was in the power of one side to have produced,
and in the power of the other to have contradicted.
In The Law of
Evidence in Civil Cases, by Sopinka and Lederman, the authors
comment on the effect of failure to call a witness and, after
setting forth the above, quote this statement:
The
application of this maxim has led to a well-recognized rule that
the failure of a party or a witness to give evidence, which it
was in the power of the party or witness to give and by which the
facts might have been elucidated, justified the Court in drawing
the inference that the evidence of the party or witness would
have been unfavourable to the party to whom the failure was
attributed.
In the
case of a plaintiff who has the evidentiary burden of
establishing an issue, the effect of such an inference may be
that the evidence led will be insufficient to discharge the
burden. (Levésque v. Comeau, [1970] S.C.R. 1010,
(1971). 16 D.L.R. (3d) 425)
[emphasis added in the original text]
See also Markakis v.
M.N.R., 86 DTC 1237 (TCC), Sedelnick Estate v. M.N.R.,
86 DTC 1563(TCC) and Christensen v. The Queen, 98 DTC
1893.
No satisfactory
explanation having been proferred respecting the failure to
produce Saxon as a witness presents the obvious question as to
the reason for such failure. The logical inference is that the
Appellant did not want him to testify or did not want him
subjected to cross-examination, or both.
[15] The onus was on
the Appellant to establish that she was entitled to succeed in
her appeal. Her testimony, not set forth above, was substantially
in respect of care that she had given her son. It is common
ground that Saxon spent at least five days a week living outside
his mother's residence. That, combined with the failure to
produce Saxon, who could have assisted the Court greatly in its
determination respecting residence, leads me to the conclusion
that the Appellant has failed to meet the onus upon her to
establish the condition set out in the definition of
"eligible individual", namely that she resided with
Saxon, the qualified dependant.
[16]
The Appellant having failed to meet the first conditions of
"eligible individual", there is no need to examine the
others. Accordingly, the appeal will be
dismissed.
Signed at Ottawa, Canada
this 15th day of August, 2002.
J.T.C.C.
COURT FILE
NO.:
2001-3582(IT)I
STYLE OF
CAUSE:
Dixie Funk v. Her Majesty the Queen
PLACE OF
HEARING:
Winnipeg, Manitoba
DATE OF
HEARING:
June 7, 2002
REASONS FOR JUDGMENT
BY: The Honourable Judge R.D. Bell
DATE OF
JUDGMENT:
August 15, 2002
APPEARANCES:
Counsel for the
Appellant:
Antoine Hacault
Counsel for the
Respondent: Michael Van Dam,
Student-at-Law
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Antoine Hacault
Firm:
Thompson, Dorfman, Sweatman
Winnipeg, Manitoba
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3582(IT)I
BETWEEN:
DIXIE FUNK,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Appeal heard on June 7,
2002 at Winnipeg, Manitoba, by
the Honourable Judge
R.D. Bell
Appearances
Counsel for the
Appellant:
Antoine Hacault
Counsel for the
Respondent:
Michael Van Dam, Student-at-Law
JUDGMENT
The appeal from the reassessment made under the Income Tax
Act with respect to the Canada Child Tax Benefit for the 1998
and 1999 base taxation years, notice of which was dated May 18,
2001, is dismissed in accordance with the attached Reasons for
Judgment.
Signed at Ottawa, Canada
this 15th day of August, 2002.
J.T.C.C.
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