Citation: 2010TCC265
Date: 20100608
Docket: 2009-3761(IT)I
BETWEEN:
ROBERT WEIDENFELD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the bench on April 14, 2010, in Toronto, Ontario.)
V.A. Miller, J.
[1]
The Appellant has
brought this appeal from a Notice of Redetermination which informed him that he
was not entitled to the Canada Child Tax Benefit (“CCTB”) for the period from
August 2007 to April 2008. The Appellant has stated that the only period which he
is disputing is the period from September 2007 to April 2008.
[2]
In making the
redetermination, the Minister of National Revenue (the “Minister”) concluded
that J was not a “qualified dependant” of the Appellant and that the Appellant
was not the “eligible individual” with respect to J.
[3]
The Minister sought to
recover the amount of $2,357.24 from the Appellant as an overpayment of CCTB.
[4]
It was the Appellant’s
evidence that he and his former spouse were having discipline problems with his
son J. In July 2007, they entered into an agreement with the Jewish Family and
Children’s Services (“JF&CS”) and J was taken into temporary care.
[5]
The JF&CS applied
to receive the CCTB for J.
[6]
In July and August, J
was placed in different foster homes. On September 10, 2007, J was placed in
The Boys’ House of The George Hull Centre (“GHC”). This is a residential
treatment facility which offers programs to boys ages 12 to 16 who are
experiencing emotional and behavioural difficulties. When he lived at GHC, J
attended a school which was close to GHC’s premises. The school is also a
treatment centre and is operated by the Toronto District School Board. J was
discharged from the GHC on April 18, 2008.
[7]
It was the Appellant’s
position that JF&CS did not maintain his son while he lived at GHC. GHC is
a non-profit organization which receives its funding from the Ministry of
Children and Youth Services for the Province of Ontario. The Appellant stated that JF&CS did
not pay GHC to maintain his son and, as a result, no special allowance was
payable with respect to his son.
Qualified Dependant
[8]
The term “qualified
dependent” is defined in section 122.6 of the Income Tax Act (the
“Act”). The only part of this definition which was relied on by the Minister is
(c) which reads:
“qualified dependant” at any time means
a person who at that time
(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 the Reply to Notice
of Appeal, the Minister assumed that J was not a qualified dependant as (a) the
costs for his care at the GHC was covered by JF&CS and (b) JF&CS
applied for and received funding under the Children’s Special Allowances Act
for J’s care while he resided at the GHC.
[10]
The facts within these
assumptions are not within the knowledge of the Appellant. They are within the
knowledge of the JF&CS and the Minister who administers the Children’s
Special Allowances Act[1].The
onus of demolishing these statements cannot lie with the Appellant. The
Respondent must have the onus of proving these assumptions.
[11]
In fairness to counsel
for the Respondent, he did attempt to submit into evidence an affidavit to
support that JF&CS applied for and received funding under the Children’s
Special Allowances Act. However, I did not allow the affidavit to be
admitted into evidence as it did not comply with subsection 244(9) of the Act.
As a result, the Respondent has not established that a special allowance was
paid in respect of J.
[12]
However, the
requirement of the Act is not that a special allowance is paid but that it is
payable in respect of a child. A special allowance is payable in respect of a
child if the conditions in section 3 of the Children’s Special Allowance
Act are met. It reads:
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, including
an authority established under the laws of a province, or by an agency
appointed by such an authority, 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.
Use of special allowance
(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.
[13]
There was no evidence
submitted by the Respondent to show that the costs for J’s care at the GHC were
covered by JF&CS. I have concluded that this knowledge is peculiar to the
Respondent and JF&CS.
[14]
The term “maintained”
is defined in section 9 of the Children’s Special Allowance Regulations.
It reads:
9. For the purposes of the Act, a child is considered to be maintained by
an applicant in a month if the child, at the end of the month, is dependent on
the applicant for the child’s care, maintenance, education, training and
advancement to a greater extent than on any other department, agency or
institution or on any person.
[15]
In accordance with
section 3 of the Children’s Special Allowance Act a special allowance is
payable when the child is maintained by a department or agency and the child
resides in the private home of foster parents, a group foster home or an
institution. The application for a special allowance must be made to and
approved by the Minister[2].
It is approved when it is made in the prescribed manner by the department,
agency or institution that maintains the child[3].
I conclude from these sections that the JF&CS must have been able to
establish to the Minster’s satisfaction that it maintained J[4]. However, there
was no evidence given at the hearing to show that JF&CS maintained J.
[16]
The only evidence which
was presented at the hearing with respect to this issue was presented by the
Appellant. He endeavoured to show that his son was not maintained by JF&CS.
As previously stated, I do not believe that this was his burden. However, to
the extent that he has established his case, the Respondent was obliged to
bring evidence to answer. This it did not do.
[17]
I conclude that the
evidence before me did not establish that J was a person in respect of whom a
special allowance under the Children’s Special Allowance Act was
payable.
Eligible
Individual
[18]
The definition of
eligible individual is in section 122.6 of the Act. The relevant portion reads
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,
[19]
It was the Appellant’s
position that he was the eligible individual with respect to his son. He
acknowledged that his son was placed in GHC from September 10, 2007 to April
18, 2008. It was his evidence that GHC was similar to a boarding school and
treatment centre. Each weekend the Appellant drove to GHC to take J home with
him. In February 2008, J was charged and convicted of an offence. The Appellant
took J away for two weeks. J stayed with the Appellant when he was suspended
from school.
[20]
The Appellant stated
that he attended meetings at GHC to discuss his son’s well-being and treatment.
He gave temporary guardianship of his son to the JF&CS but he was still
involved in his son’s life to a great degree.
[21]
The Appellant relied on
the decision of Woods, J. in Bouchard v. R.[5] to state that an
expansive definition of the term reside should be used. He stated that the
present situation is identical to the decision in Penner v. R.[6]
[22]
The circumstances in Bouchard
are very different from the present case.
[23]
Bouchard involved a situation where the father was
unable to stay with his child because the father was incarcerated. The father
continued to take care of the child and to provide for the child. The child did
not acquire another habitual abode during her father’s incarceration.
[24]
Likewise, Penner
is distinguishable from the present case. In Penner, the child did not
reside with the parent as the child had to attend boarding school. It was found
that the parent primarily fulfilled the responsibility for care and upbringing
of the child. The parent paid for the child’s room and board and was the only
person who had legal responsibility for care and upbringing of the child.
[25]
In the present appeal.
J was placed in the temporary care of the JF&CS. During the period under appeal,
JF&CS placed J in the GHC. The Appellant did not have to pay for J’s room
and board. J’s education and treatment were provided by GHC. A copy of the
agreement between the Appellant and JF&CS was not presented into evidence
and I am left to wonder as to the terms of this agreement.
[26]
I do not agree that J
resided with the Appellant during the period under appeal. The word “reside”
usually means “to live in the same house as”: Burton v. R., [2000] 1 C.T.C. 2727 (TCC). In the context of section 122.6, the
word “resides” has been interpreted to connote “a settled and usual abode”.[7] During the
period September 10, 2007 to April 18, 2008, J resided at the GHC.
[27]
The appeal is
dismissed,
Signed at Ottawa, Canada, this 8th day of June 2010.
“V.A. Miller”
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