Citation: 2010TCC67
Date: 20100204
Docket: 2009-2118(IT)I
BETWEEN:
PATTI D. CAMPBELL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb J.
[1]
The
issue in this appeal is whether the Appellant is entitled to the Canada Child
Tax Benefit (the “CCTB”) and the Goods and Services Tax Credit (“GSTC”) for D.P.C.
(the “Child”) for the period from July 2006 to June 2009 (the “period under
appeal”) or for any part or parts of the period under appeal. The Appellant had
received CCTB and GSTC payments for some parts of this period but it was
subsequently determined that she was not entitled to receive any amounts as a
CCTB or as a GSTC for any part of the period under appeal. Following the filing
of a Notice of Objection by the Appellant, the Minister of National Revenue
confirmed that the Appellant was not entitled to any CCTB or GSTC for the Child
for any part of the period under appeal.
[2]
Under
the Income Tax Act (“Act”) the CCTB is treated as an overpayment
of the person's liability under the Act and hence, if the individual is
eligible, such amount is paid to the eligible individual as a refund of this
overpayment. Under subsection 122.61(1) of the Act the overpayment
amount is calculated on a monthly basis. This subsection provides, in part, as
follows:
Where a person ... [has] filed a return of income for the year, an
overpayment on account of the person's liability under this Part for the year
is deemed to have arisen during a month in relation to which the year is the
base taxation year, equal to the amount determined by the formula
1/12 [(A - B) + C + M]
where
A is the total of
(a) the product obtained by multiplying
$1,090 by the number of qualified dependants in respect of whom the
person was an eligible individual at the beginning of the month, and
…
C is the amount determined by the formula
F – (G × H)
where
F is, where the person is, at the
beginning of the month, an eligible individual in respect of
(a) only one qualified dependant,
$1,463, and
(emphasis added)
[3]
Because
the overpayment is deemed to have arisen during a month in respect of a person
who was an eligible individual in
respect of a qualified dependent at the beginning of the month, this
requires a determination of whether any particular person was an eligible
individual at the beginning of each month in respect of that qualified
dependent. As a result, it does not necessarily follow that because one
particular person was the eligible individual in respect of a qualified
dependent at the beginning of a particular month, that the same person would
then be the eligible individual at the beginning of the following month in
respect of that qualified dependent. The definitions of "eligible
individual" and “qualified dependant” in section 122.6 of the Act provide
that:
"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,
...
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;
“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;
[4]
In
this particular case there is no dispute that the Appellant is the female
parent of the Child. The Respondent was disputing whether the Child was
residing with the Appellant during the period under appeal. If the Child was
not residing with the Appellant during the period under appeal, then the
Appellant would not be an eligible individual (since she would not be residing
with the Child) and hence she would not be entitled to the CCTB. If the Child
was residing with the Appellant, the position of the Respondent is that the
presumption in paragraph (f) of the definition of “eligible individual”
referred to above was not applicable and, in any event, Timothy Campbell was the
Child’s parent who primarily
fulfilled the responsibility for her care and upbringing during the period
under appeal.
[5]
Paragraph
(g) of the definition of “eligible individual” referred to above
provides that the presumption as set out in paragraph (f) does not apply in
prescribed circumstances. These prescribed circumstances (in which the
presumption would not be applicable) are set out in section 6301 of the Income
Tax Regulations ("Regulations") and include, as one of
these circumstances, the situation where "more than one notice is filed
with the Minister under subsection 122.62(l) of the Act in respect
of the same qualified dependent who resides with each of the persons filing the
notices if such persons live at different locations". Assuming that the
Child resided with both the Appellant and Timothy Campbell, since both Timothy
Campbell and the Appellant filed the notice with the Minister under subsection
122.62(1) of the Act and since they were not residing at the same
location, the presumption in paragraph (f) of the definition of
“eligible individual” referred to above is not applicable.
[6]
The
GSTC is only determined for eligible individuals in relation to specified
months. Subsection 122.5 of the Act provides in part as follows:
(3) An eligible individual in
relation to a month specified for a taxation year who files a return of
income for the taxation year and applies for an amount under this subsection is
deemed to have paid during the specified month on account of their tax payable
under this Part for the taxation year an amount equal to ¼ of the amount, if
any, determined by the formula
A – B
where
A is the total of
(a) $213,
(b) $213 for the qualified relation, if
any, of the individual in relation to the specified month,
(c) if the individual has no qualified
relation in relation to the specified month and is entitled to deduct an
amount for the taxation year under subsection 118(1) because of paragraph (b)
of the description of B in that subsection in respect of a qualified dependant
of the individual in relation to the specified month, $213,
(d) $112 times the number of qualified
dependants of the individual in relation to the specified month, other than a
qualified dependant in respect of whom an amount is included under paragraph
(c) in computing the total for the specified month,
(emphasis added)
[7]
The
definitions of “eligible individual”, “qualified dependent” and “qualified
relation” are in subsection 122.5 and these are as follows:
“eligible individual”, in relation to a
month specified for a taxation year, means an individual (other than a trust)
who
(a) has, before the specified month,
attained the age of 19 years; or
(b) was, at any time before the specified
month,
(i) a parent who resided with their
child, or
(ii) married or in a common-law
partnership.
“qualified dependant” of an individual,
in relation to a month specified for a taxation year, means a person who at the
beginning of the specified month
(a) is the individual's child or is
dependent for support on the individual or on the individual's cohabiting
spouse or common-law partner;
(b) resides with the individual;
(c) is under the age of 19 years;
(d) is not an eligible individual in
relation to the specified month; and
(e) is not a qualified relation of any
individual in relation to the specified month.
“qualified relation” of an individual, in
relation to a month specified for a taxation year, means the person, if any,
who, at the beginning of the specified month, is the individual's cohabiting
spouse or common-law partner.
[8]
Subsection
122.5(4) of the Act provides that:
(4) For the purposes of this section, the
months specified for a taxation year are July and October of the immediately
following taxation year and January and April of the second immediately
following taxation year.
[9]
Subsection
122.5(6) of the Act provides that:
(6) If a person would, if this Act were
read without reference to this subsection, be the qualified dependant of two or
more individuals, in relation to a month specified for a taxation year,
(a) the person is deemed to be a
qualified dependant, in relation to that month, of the one of those individuals
on whom those individuals agree;
(b) in the absence of an agreement
referred to in paragraph (a), the person is deemed to be, in
relation to that month, a qualified dependant of the individual, if any, who
is, at the beginning of that month, an eligible individual within the meaning
assigned by section 122.6 in respect of the person; and
(c) in any other case, the person is
deemed to be, in relation to that month, a qualified dependant only of the
individual that the Minister designates.
(emphasis added)
[10]
The
result of the foregoing definitions and requirements for CCTB and the GSTC mean
that, for the purposes of this appeal, the issues are as follows:
(a)
Was the
Child residing with the Appellant at the beginning of any the months during the
period under appeal for the purposes of the CCTB, and if so, for which months;
and was the Child residing with the Appellant at the beginning of any of the
months of January, April, July or October during the period under appeal for
the purposes of the GSTC?
(b)
If the
Child was residing with the Appellant at the beginning of any of these months,
was she also residing with Timothy Campbell at the beginning of the same month
or months?
(c)
If the
Child was residing at the beginning of any particular month or months with both
the Appellant and Timothy Campbell, which parent, at the beginning of such
month or months, was the parent who primarily fulfilled the responsibility for the care and upbringing of the
Child at that time?
[11]
The
Appellant, Greg Gardiner (a friend of the Appellant), Timothy Campbell and Kelly
Campbell (Timothy Campbell’s current spouse) all testified during the hearing.
The first issue that has to be determined is whether the Child resided with the
Appellant, Timothy Campbell or both during the period under appeal.
[12]
Justice Rand of the
Supreme Court of Canada in Thomson v. M.N.R., 1945 CarswellNat 23,
[1946] C.T.C. 51, made the following comments on “residing” and “ordinarily
resident”:
47 The gradation of degrees
of time, object, intention, continuity and other relevant circumstances, shows,
I think, that in common parlance "residing" is not a term of
invariable elements, all of which must be satisfied in each instance. It is
quite impossible to give it a precise and inclusive definition. It is highly
flexible, and its many shades of meaning vary not only in the contexts of
different matters, but also in different aspects of the same matter. In one
case it is satisfied by certain elements, in another by others, some common,
some new.
48 The expression "ordinarily
resident" carries a restricted signification, and although the first
impression seems to be that of preponderance in time, the decisions on the
English Act reject that view. It is held to mean residence in the course of the
customary mode of life of the person concerned, and it is contrasted with
special or occasional or casual residence. The general mode of life is,
therefore, relevant to a question of its application.
[13]
Justice
Bonner in S.R. v. The Queen, 2003 TCC 649, [2004] 1 C.T.C. 2386, made
the following comments:
12 The
word "reside" with as used in the section 122.6 definition of the
term "eligible individual" must be construed in a manner which
reflects the purpose of the legislation. That legislation was intended to
implement the child tax benefit. That benefit was introduced in 1993 with a
view to providing a single nontaxable monthly payment to the custodial parent
of a child. That payment was intended to benefit the child by providing funds
to the parent who primarily fulfilled the responsibility for the care and
upbringing of the child. The threshold test is whether the child resides with
the parent. Physical presence of the child as a visitor in the residence of a
parent does not satisfy the statutory requirement. The word "resident"
as used in s. 122.6 connotes a settled and usual abode. …
[14]
In Lapierre
v. The Queen, 2005 TCC 720, 2008 DTC 4248, Justice Dussault stated that:
13 Although
residence is the fundamental concept applied to determine if a person is
subject to income tax under the Act, that term is nonetheless not defined
therein and it is the courts that have attempted to establish its scope.
Essentially a question of fact, a person's residence in a given place is
determined by a certain number of criteria of time, object, intention and
continuity that do not necessarily always carry the same weight and which can
vary according to the circumstances of each case. (see Thomson v. M.N.R.,
[1946] S.C.R. 209). All things considered, residence implies a certain
constancy, a certain regularity or else a certain permanence according to a
person's usual lifestyle in relation to a given place and is to be
distinguished from what might be called visits or stays for specific purposes
or of a sporadic nature. When the Act sets as a condition to reside with
another person, I do not consider it appropriate to attribute to the verb
"to reside" a meaning which deviates from the concept of residence as
it has been developed by the courts. To reside with someone is to live or stay
with someone in a given place with a certain constancy, a certain regularity or
else in an habitual manner.
[15]
As a
result it is necessary to determine whether the Child lived with the Appellant
and / or Timothy Campbell on a settled and usual basis. It is not simply a
question of which house she was at on the first day of any given month. Did she
have a settled and usual abode with the Appellant or Timothy Campbell? Did she
live with either or both of them regularly during this period?
[16]
The
evidence was clear that the Appellant and Timothy Campbell had joint custody of
the Child throughout the period under appeal. It is also clear that there was a
settled rotation of time that the Child would be with each parent. The
Appellant described this rotation as follows:
THE WITNESS:
Okay. So Monday night I picked her up. She spends the night with me. I put
her on the bus Tuesday morning. Then she's in school all day, then I pick her
up at 4:30 again on Tuesday. Then she goes back to her father's on Wednesday.
I put her on the bus Wednesday morning, then she's back at her father's
Wednesday night, and she's there Wednesday night and Thursday night, and then I
pick her up again Friday at 4:30 till noon on Sunday.
And then it
rotates the next week; Monday and Tuesday with her father, and then Wednesday
and Thursday with me, and then back with her father on Friday. So she takes
the bus from my place Friday morning, goes to school, and then she's with her
father.
[17]
It
seems clear to me that this regular cycle of alternating between the
Appellant’s home and Timothy Campbell’s home continued throughout the period
under appeal and that the Child was residing with both parents throughout this
period. The Child had a settled and usual abode with both parents. The fact
that the Appellant lived in different houses or apartments during the three
year period from July 2006 to June 2009 does not change the fact that the Child
was with her wherever the Appellant’s home was located.
[18]
The
issue is then whether the Appellant or Timothy Campbell was the parent who primarily fulfilled the
responsibility for the Child’s care and upbringing. Section 6302 of the Regulations
provides that:
6302. 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.
[19]
The
definition of “eligible individual” in section 122.6 of the Act, as
noted above, provides in part that:
"eligible individual" in respect of a qualified dependant
at any time means a person who at that time
…
(b) is the parent of the
qualified dependant who primarily fulfils the responsibility for
the care and upbringing of the qualified dependant,
(emphasis added)
[20]
As
noted above there is also a presumption (which does not apply in this case)
that if the qualified dependent resides with the female parent that the female
parent is “the parent who
primarily fulfils the responsibility for the care and upbringing of the
qualified dependant”. Only individuals who are parents of the qualified
dependent can be “eligible individuals” and the definition provides that a
determination must be made with respect to the parents and the
determination is which parent is “the parent who primarily
fulfils the responsibility for the care and upbringing of the qualified dependant”.
In this case there was evidence of the role that Kelly Campbell and her
daughters played in the care and upbringing of the Child but it seems to me
that the relevant question is what role did Timothy Campbell and the Appellant
play in the care and upbringing of the Child?
[21]
The
evidence in relation to the roles played by the Appellant and Timothy Campbell
in the care and upbringing of the Child was in very general terms. With respect
to the supervision of the daily activities and needs of the Child, the
Appellant stated that when the Child was with her that she would supervise her
daily activities and needs. Timothy Campbell testified that when the Child was
staying at his house, he, Kelly Campbell, or Kelly Campbell’s daughters would
supervise the daily activities of the Child. The Child would have been eight
years old at the commencement of the period under appeal and therefore would
have been attending school throughout the period under appeal. It seems to me
that each parent equally fulfilled the supervision of the daily activities of
the Child since the Child spent approximately one-half of her time that she was
not in school or at some other activity at each parent’s house over the two
week cycle of joint custody. There was an indication that there were occasions
during the period under appeal when each parent would not be able to look after
the Child when it was his or her time to have the Child. There was however no
specific details of how many times this occurred only statements by Timothy
Campbell that the Appellant would leave messages on his answering machine
indicating that the Appellant could not take the Child and an admission by
Timothy Campbell during cross examination that he was playing in a band on
weekends. Without details with respect to the number of times this occurred, I
find that the Child spent approximately one-half of her time that she was not
in school or at some other activity at each parent’s house during the period
under appeal.
[22]
It
seems to me that the Appellant would be the parent who supervised the daily
activities and needs of the Child when the Child was with the Appellant and
Timothy Campbell would be the parent who supervised the daily activities and
needs of the Child when the Child was with him.
[23]
Each
parent maintained a secure environment in which the Child resided. Just because
the Appellant had to move because she could not afford a particular place does
not mean that the environment in which the Child was residing when the Child
was with the Appellant was not a secure environment. Timothy Campbell lived in
the same house throughout the period under appeal.
[24]
With
respect to the arrangement of, and transportation to, medical care at regular
intervals and as required for the Child, there was very little evidence that the
Appellant took the Child to see a doctor or a dentist. It seems clear that the
Child needed dental work during the period under appeal. During the examination
of Timothy Campbell he stated the following in relation to this factor:
Q. The
third thing I want to talk to you about is the arrangement of and
transportation to medical care at regular intervals as required for the
qualified dependent.
If [the Child]
has to go to the dentist ‑‑ we heard some evidence in that regard ‑‑
can you give me any further evidence as to say [the Child’s] dentistry needs?
A. Actually
right now they're fine. They've all been met.
Q. Who
looked after it between 2006 and 2009?
A. My
wife, Kelly, and myself both looked after it after we received the letter that
was submitted earlier.
[25]
The
letter to which Timothy Campbell referred was a letter dated June 2, 2005 from
Leeds, Grenville & Lanark District Health Unit. At the top of the letter it
is identified as “Dental Program For Children in Need of Treatment” and “Third
Party Notification”. The letter indicates that the Child was in immediate need
of dental treatment, although the particular treatment was not identified. It
is not at all clear whether the treatment that was required was completed
before or during the period under appeal since the letter is dated a little
over a year before the commencement of the period under appeal.
[26]
The
Respondent introduced into evidence a statement from Lance McIntosh D.D.S.
dated August 14, 2008 which the Respondent submitted was support for a finding
that Timothy Campbell arranged for the dental needs of the Child. This was
described by Timothy Campbell as representing a typical trip to the dentist
(after the other problems referred to in the letter dated June 2, 2005 were
addressed). However it is clear from this statement that Kelly Campbell also
had dental work done on the same day as the Child and there is a reference to
an upcoming appointment for Timothy Campbell on September 15, 2008. It
therefore seems to me that it was more likely than not that Kelly Campbell
arranged for the Child’s dental work to be done.
[27]
Whenever
Timothy Campbell referred to other appointments with the medical doctor or the
eye doctor, he would state that either Kelly Campbell or he would take the
Child. It seems to me that it was more likely than not that Kelly Campbell was
the person who arranged for and who took the Child to her various medical and
dental appointments. It does not seem to me that Timothy Campbell can fulfill
this responsibility by delegating this responsibility to Kelly Campbell any
more than the Appellant can fulfill this responsibility by delegating this
responsibility to Timothy Campbell. If one parent is allowed to satisfy the
requirement that such parent primarily fulfilled the responsibility for the
care and upbringing of a qualified dependent by showing that such parent did
not personally fulfill such responsibility but delegated this responsibility to
someone else, then each parent could delegate someone else to fulfill their
responsibilities and neither parent would be required to personally fulfill any
responsibility. It seems to me that the definition of eligible individual requires
me to examine what each parent personally did, not what some one else did as a
result of a parent delegating the responsibility for the care and upbringing of
a child to such other person. As a result neither parent could be considered as
the parent who primarily fulfilled this responsibility.
[28]
With
respect to the educational, recreational, athletic, and other activities of the
Child, there was very little evidence of any personal involvement of either
parent. The activities of the Child were activities that were arranged through
the school or church. Another woman would pick up the Child to take her to drama.
It seems to me that neither one of the two parents would be considered to be
the parent who primarily fulfilled this responsibility.
[29]
If
the Child was ill when she was with the Appellant, then the Appellant would
attend to her needs. If the Child was sick when she was with Timothy Campbell,
then either Timothy Campbell or Kelly Campbell would attend to her needs. It
appears that each parent would primarily fulfill this responsibility when the
Child was with that parent.
[30]
With
respect to the attendance to the hygienic needs of the Child, each parent would
look after these needs of the Child when she was at that parent’s house and
therefore each parent would primarily fulfill this responsibility when the
Child was with that parent.
[31]
With
respect to the provision, generally, of guidance and companionship to the
Child, it seems to me that each parent would provide guidance and companionship
to the Child whenever the Child was with that parent. The responses of the
Appellant and Timothy Campbell in relation to this factor were as follows:
The Appellant:
MS. CAMPBELL: I spend all my time with her, Your Honour. She
doesn't go to a sitter. I had a sitter for her last summer when I was working
at ‑‑ in Brockville
as a server, and the whole time I worked there I had a child care for her once;
only once. She's always with me. I don't ‑‑ I haven't had a
sitter in four years. I spend all my time with her. We go ‑‑ in
the summertime I take her to the beach. We're always doing something together;
we spend all of our time together. I don't want her elsewhere; I want her with
me. Sometimes she might do a sleepover at a friend's, but also that friend
does sleepovers at my place as well. She's always with me.
Timothy Campbell
Q. The
provision generally of guidance and companionship to the qualified dependent,…;
guidance and companionship, being a parent and guiding [the Child], is that
something you both do equally, or do you have any position on that?
A. I'd say
from 2006 to 2008 most of the guidance came from our house. After that I'd say
almost equally going through 2009.
Q. What
happened between 2006 and 2008? Why do you distinguish that time period?
A. Just
personal problems I think Patti was having at the time.
Q. With
respect to what?
A. A number
of factors probably, and I'd be speculating, but you could say relationship,
job. Again, I'm speculating; I have no proof.
…
Q. As far as
guidance and companionship of [the Child], you mentioned ensuring she does her
homework, you mentioned ensuring she does her chores and follows certain rules
in the house. Is there anything else you want to add in that regard as far as
being a parent to [the Child]?
A. Other than just teach her right or wrong, teaching her about
friendships, teaching her history that they're not going to learn in school,
teaching her about community.
Q. How do you do that?
A. By
participating in the community with certain little things that go on, or taking
her so she can see other things happening. She goes with my mother, who is a
strong member in the Legion, and helps her with things. She's active with the
church groups.
[32]
Although
the answer provided by Timothy Campbell was longer, there was no indication
that he would be providing guidance and companionship to the Child when the Child
was with the Appellant. Timothy Campbell acknowledged that he and the Appellant
have equally provided guidance since 2008. For the period from 2006 to 2008.
Timothy Campbell stated that “most of the guidance came from [his] house”
without indicating whether it was he or Kelly Campbell who provided such
guidance. It seems to me that each parent would be the parent who primarily
fulfilled this responsibility when the Child was with that parent.
[33]
The
final factor is the existence of a court order. In this case the court order dated
June 27, 2005 provided in part that:
1. The parties shall have joint custody
of the child…with the child’s primary residence being with the Respondent
father.
2. The Appellant mother, Patti Campbell,
shall have the child in her care and control as follows:
(a) alternating weekends from Friday at
4:00 pm until Sunday at 12:00 noon, commencing April 1, 2005;
(b) during the week (Monday to Friday)
[the Child] shall be in the care of the Applicant mother up to two days, with
these times to be determined pursuant to the Applicant’s work schedule so as
the child is not left in the care of a third party. The Applicant shall provide
her work schedule to the Respondent a minimum of two months in advance;
(c) during the summer holiday period
(July and August) each party shall be entitled to a two (2) week period of
uninterrupted time with the child. Each party shall advise of their holiday
schedule on or before June 1st. Each party shall be entitled to
telephone access with the child while in the other parent’s care;
(d) during the Christmas holiday period
the child shall be in the care of the Respondent father, Timothy Campbell, from
Christmas Eve (December 24th) at 12:00 noon until Christmas Day at
2:00 pm in all odd numbered years, and with the Applicant mother in even
numbered years. The child shall be in the Respondent’s care from December 25th
at 2:00 pm until December 26th at 2 pm in all even numbered years,
and with the Applicant in all odd numbered years;
(e) Each party shall be permitted to
speak with the child by telephone during those periods in which the child is in
the other parent’s care between 5:00 pm and 7:00 pm.
[34]
The
parties did not follow the order exactly as the Appellant had the Child for
more than two days from Monday to Friday every second week. The order does
clearly provide that the parents had joint custody and, even though the order
did not provide for the two week schedule that the parents adopted, it clearly
did provide that the child was to be with each parent for significant amounts
of time and also for telephone access when the Child was with the other parent.
This order, as implemented by the parents, does not support a finding that
either parent was the parent who primarily fulfilled the responsibility for the
care and upbringing of the Child.
[35]
It
does appear that, as between the Appellant and Timothy Campbell, that they
played equal roles in the care
and upbringing of the Child. It is not easy in this case to determine which one
of these two individuals was the parent who primarily fulfilled the
responsibility for the care and upbringing of the Child at the beginning of any
particular month during the period under appeal. It is clear that the Child,
over the course of the two week cycle, spent approximately the same amount of
time with one parent as she did with the other parent. However, the Act,
in relation to the CCTB, does not stipulate what will happen if both parents
equally fulfill the responsibility for the care and upbringing of the qualified
dependent and the Act, in relation to the CCTB, appears to be drafted on
the assumption that in every family situation one parent will be the person who
primarily fulfills this responsibility and that this responsibility cannot be
shared equally.
[36]
It
does not seem to me that the correct result in this situation, where the Appellant
and Timothy Campbell share equally in fulfilling their responsibility for the
care and upbringing of the Child, is that neither parent should be entitled to
the CCTB because neither parent would be able to satisfy the requirement that
such parent must be the parent who primarily fulfills such
responsibility. The question of whether a person is an eligible individual
arises each month and is to be determined at the beginning of each month. It
seems to me that in this case, the Appellant and Timothy Campbell generally shared
equally in fulfilling the responsibility for the care and upbringing of the Child
and for some of the factors, the parent who actually had the Child with him or
her at the beginning of the month would, as of that time, be the parent who can
reasonably be considered to be the one who was then primarily fulfilling the
responsibility for that factor. Therefore each of the Appellant and Timothy
Campbell should be considered to satisfy the requirement that such parent was
the one who, at the beginning of any particular month, was the parent who
primarily fulfilled the responsibility for the care and upbringing of the
qualified dependent on an alternating basis from month to month.
[37]
The
issue in this case is only related to the Appellant. Although it does seem
obvious that if the Appellant is not the parent at the beginning of a
particular month who is the eligible individual in respect of the Child for the
purposes of section 122.6 of the Act, then Timothy Campbell must be the
eligible individual at the beginning of such month, the only determination that
will be made is which months are the months, at the beginning of which, the
Appellant was an eligible individual for the purposes of section 122.6 of the Act.
[38]
As a
result, I find that the Appellant was the parent who was primarily responsible
for the Child’s care and upbringing at the beginning of the following months
and therefore she was an eligible individual in respect of the Child for the
purposes of section 122.6 of the Act at the beginning of the following
months during the period under appeal:
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August 2006
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October 2006
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December 2006
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February 2007
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April 2007
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June 2007
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August 2007
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October 2007
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December 2007
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February 2008
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April 2008
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June 2008
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August 2008
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October 2008
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December 2008
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February 2009
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April 2009
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June 2009
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[39]
The
alternating eligibility of the Appellant and Timothy Campbell reflects the
alternating custody arrangement for the Child.
[40]
The
appeal is allowed, with costs, and the matter is referred back to the Minister
of National Revenue for reconsideration on the basis that the Appellant was an
eligible individual in respect of the Child at the beginning of each one of the
months listed above for the purposes of determining the CCTB of the Appellant
and that the Child was a qualified dependent of the Appellant in relation to
the months of October 2006, April 2007, October 2007, April 2008, October 2008,
and April 2009 and the Appellant was an eligible individual in relation to each
of these months for the purposes of determining the GSTC of the Appellant.
Signed at Ottawa,
Canada, this 4th day of February, 2010.
“Wyman W. Webb”
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