Docket: 2010-134(IT)I
BETWEEN:
LORRAINE DUBUC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeal heard on common evidence with the
appeal of Pierre Demers (2010-130(IT)I), on December 13, 2010, at
Sherbrooke, Quebec.
Before: The Honourable Justice Robert J.
Hogan
Appearances:
|
For the appellant:
|
The appellant herself
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|
|
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Counsel for the respondent:
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Christina Ham
|
____________________________________________________________________
JUDGMENT
The appeal from the redeterminations under
the Income Tax Act by which the Minister of National Revenue revised the
Canada Child Tax Benefit for the 2005, 2006, 2007 base taxation years and the goods
and services tax credit for the 2006 and 2007 taxation years is dismissed,
without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 9th day of
March 2011.
"Robert J. Hogan"
Translation
certified true
on this 21st day
of April 2011
Monica F.
Chamberlain, Translator
Citation: 2011 TCC 55
Date: 20110309
Docket: 2010-134(IT)I
BETWEEN:
LORRAINE DUBUC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Hogan, J.
I. Introduction
[1]
Lorraine Dubuc (the
appellant) is appealing from redeterminations made by the Minister of National
Revenue (the Minister) according to which she was not an "eligible
individual" within the meaning of section 122.6 of the Income Tax Act
(the Act) with respect to the Canada Child Tax Benefit (CCTB) claimed by the
appellant with respect to her daughter (the child) for the 2005, 2006, and 2007
base taxation years. The appellant is also appealing from redeterminations made
by the Minister with respect to the goods and services tax credit (GSTC)
claimed by the appellant with respect to the child for the 2006 and 2007
taxation years.
[2]
Pierre Demers, the
child's father, also claimed the CCTB with respect to this child. His claim was
also refused and the two appeals were heard on common evidence.
[3]
The appellant did not
serve a notice of objection to the redeterminations made by the Minister with
respect to the CCTB for the 2006 and 2007 base taxation years and her appeal
for these years is dismissed without further reasons. The appellant also failed
to serve a notice of objection with respect to the GSTC for the 2007 taxation
year and her appeal for that year is also dismissed without further reasons.
II. Summary of the Facts
[4]
In making the
redetermination of November 20, 2008, with respect to the 2005 base taxation
year and the redetermination of October 24, 2008, for the 2006 taxation year,
the Minister relied on the following presumptions of fact:
[Translation]
(a)
The appellant and her ex-partner,
Pierre Demers, have lived separately since January 17, 2007;
(b)
They had a daughter
together in August 1991;
(c)
In July 2008, Mr.
Demers claimed the CCTB further to a judgment specifying that he had had
custody of the child from January 17, 2007;
(d)
In August 2008, the
Minister sent the appellant and Mr. Demers a questionnaire to determine the
parent eligible to receive the CCTB and the GSTC for the period beginning
January 17, 2007;
(e)
On November 20, 2008,
the Minister determined that the appellant was no longer the person eligible to
receive the CCTB for the period from January 2007 to June 2007 for the 2005
base taxation year;
(f)
On October 24, 2008,
the Minister determined that the appellant was no longer the eligible
individual to receive the GSTC for the 2006 taxation year.
[5]
The appellant testified
that she left the family residence where she lived with the Mr. Demers and the
child at the beginning of 2007 following the end of her relationship with Mr.
Demers. The appellant explained that she rented an apartment near the family
residence where she went to live with her elder daughter from a previous marriage.
The apartment was too small for the child to live there and so the child lived
exclusively with Mr. Demers during the 2007 taxation year.
[6]
The appellant claims
that the she had exclusive custody of the child from January 2008. She
acknowledges that, following a judgment of the Superior Court of Quebec, she
should have had shared custody of the child beginning in April 2008. Notwithstanding
this judgment, she claims that she had exclusive custody of the child from
January 2008 to June 2009.
[7]
Pierre Demers maintains
that he had exclusive custody of the child from January 2007 to January 2008. Moreover,
Mr. Demers maintains that custody was shared with the appellant from April
2008 in accordance with the judgment of the Superior Court of Quebec.
III. Issues
[8]
The issues are whether
the Minister correctly revised the appellant's CCTB in determining that she received
an overpayment of $474.61 for the 2005 base taxation year and whether the
Minister correctly revised the appellant's GSTC in determining that she
received an overpayment of $5.30 for the 2006 taxation year.
IV. Analysis
[9]
The definition of the
term "eligible individual" in section 122.6 of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.) and its amendments, was for the relevant period
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 149(1)(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
subsection 2(1) of the Immigration and Refugee Protection Act,
(ii)
is a temporary resident within the meaning of
the Immigration and Refugee Protection Act, who was resident in Canada
throughout the 18 month period preceding that time, or
(iii)
is a protected person within the meaning of the Immigration
and Refugee Protection Act,
(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 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
122.6 eligible individual (f) does not apply in prescribed
circumstances, and
(h) prescribed factors shall be considered in
determining what constitutes care and upbringing.
[10]
The appellant admitted
at the hearing that the child lived exclusively with her father during the
entire 2007 taxation year. Consequently, she could not be the "eligible
individual" within the meaning of section 122.6 of the Act for the 2005 base taxation
year. Mr. Demers was the individual eligible to receive the CCTB for the period
from January 2007 to January 2008. Moreover, for the same reason, the appellant
could not be the "eligible individual" for the GSTC within the
meaning of section 122.5 of the Act for the 2006 taxation year.
V. Conclusion
[11]
For all these reasons,
the appeal is dismissed without costs.
Signed at Ottawa, Canada, this 9th day of March 2011.
"Robert J. Hogan"
Translation
certified true
on this 21st day
of April 2011
Monica F.
Chamberlain, Translator
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