Citation: 2010TCC308
Date: 20100610
Docket: 2009-2608(IT)I
BETWEEN:
AHMED ATTIA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AMENDED REASONS FOR JUDGMENT
These Reasons are issued in substitution for the
Reasons dated June 4, 2010.
Sheridan, J.
[1]
The Appellant, Ahmed Attia, is
challenging the redetermination of his entitlement to the GST Credit (“GSTC”) for
the 2006 taxation year and the Canada Child Tax Benefit (“CCTB”) for the 2006
“base taxation year”. Expressed in calendar years, the period under review is
July 2007 to June 2008 (the “Period”).
[2]
The hearing of this Informal
Procedure appeal began on February 3, 2010; it was adjourned at the direction
of the Court to March 12, 2010 to permit counsel for the Respondent to obtain additional
information from his client regarding the Minister’s redeterminations. In the interim, the Appellant
was awarded sole custody of the two children in respect of whom the CCTB was
claimed. The Judgment of Ricchetti, J. of the Ontario Superior Court of Justice
was issued March 2, 2010
(“Custody Judgment”).
[3]
Turning first to the GST Credit,
the Appellant presented no evidence to refute the Minister’s assumption in
paragraph 9(s) of the Reply to the Notice of Appeal that his family income in
2006 was too high for him to be eligible for the GST Credit. Accordingly, that
aspect of this appeal cannot succeed.
[4]
In respect of the CCTB, what makes
this case a little out of the ordinary is that the Appellant’s children were
abducted by the Appellant’s spouse during a family holiday to Egypt in August
2006. As well as attempting to locate
the children and to work with the relevant authorities in Egypt to have the
children returned to Canada, in March 2007, the Appellant commenced custody
proceedings in Ontario. Motions and countermotions ensued. In December 2007,
his spouse finally complied with a Court order requiring her to return to Canada with the
children. However, the Court also granted her custody of children; the
Appellant’s access was limited to some evenings and weekends. Further details
of the steps taken by the Appellant to obtain custody of his children are set
out in paragraphs 9(a) to (p) of the assumptions in the Reply to the Notice of
Appeal:
a)
the Appellant and Gihan Garanna (“Gihan”) were
married in 2000 and have been living separate and apart since August 2006
because of a breakdown of their marriage;
b)
the Appellant and Gihan are the parents of D.A.,
born 2001 and Y.A., born 2004 (“the children);
c)
at all material times before the date of
separation the Appellant, Gihan, and the children were living together in the
matrimonial home at 6054 Tillsdown Drive, Mississauga, Ontario;
d)
during August 2006 the Appellant and Gihan
travelled with the children to Egypt;
e)
during September 2006 the Appellant returned to
Canada without Gihan, who remained with the children in Egypt;
f)
pursuant to an Order dated June 8, 2007 of the
Ontario Superior Court of Justice [Court File No. FS-07-0867-00] (“the Order”)
the Appellant was given custody of the children, who remained with Gihan in Egypt;
g)
pursuant to the Order Gihan was required to
deliver the children forthwith into the care of the Appellant;
h)
Gihan did not return to Canada, and, did not deliver the children into the care of the Appellant
as ordered;
i)
Gihan by her solicitor moved before the Ontario
Superior Court of Justice in Court File No. FS-07-0867-00 to set aside the
Order;
j)
The Ontario Superior Court of Justice adjourned
the motion referred to in subparagraph 9(i) above and:
-
ordered Gihan to return to Canada with the children within 30 days;
-
gave the Appellant access to the children, upon
their return , for 6 hours each Sunday and 3 hours each Wednesday evening; and,
-
stayed the Order pending a continuance of the
motion brought by Gihan.
The Court endorsed the record accordingly on
November 15, 2007;
k)
Gihan by her solicitor moved separately before
the Ontario Superior Court of Justice in Court File No. FS-07-0867-00 for an
order of exclusive possession of the matrimonial home referred to in
subparagraph 9(c) above;
l)
neither Gihan nor the children had returned to Canada on or prior to the hearing on
December 7, 2007 of the motion referred to in subparagraph 9(k) above;
m)
the motion referred to in subparagraph 9(k)
above was dismissed without prejudice to Gihan upon the return of the motion
referred to in subparagraph 9(i) above. The Court endorsed the record
accordingly on December 7, 2007;
n)
the motion referred to in subparagraph 9(i)
above came back on for hearing on April 29, 2008 before the Ontario Superior
Court of Justice;
o)
at that time Gihan and the children had returned
to Canada;
p)
the Ontario Superior Court of Justice heard the
motion and:
(i)
gave the Appellant care of the children as
follows:
-
from May 2, 2008 to May 4, 2008
-
from May 16, 2008 to May 18, 2008
-
from Friday at 5 pm to Sunday at 7 pm for 3
consecutive weekends of every 4 weekends, commencing May 30, 2008, pending
further order
-
2 non-consecutive weeks, each from Friday at 5
pm to Sunday at 7 pm during July 2008 to August 2008 subject to weekends scheduled
for Gihan
-
each Wednesday between 5 pm and 8 pm
(ii)
made no order as to custody
(iii)
gave Gihan the right to make educational and
medical decisions with respect to the children, subject to an obligation to
fully inform the Appellant in writing. The Court endorsed the record
accordingly on April 30, 2008;
[5] The
relationship between the Appellant and his spouse was an acrimonious one.
Paragraph 243 of the Custody Judgment gives an indication of the extent to
which their matrimonial problems diminished the concern of either parent for
the children’s well being:
[243] The
most significant [custody] issue is whether either or both of the parties are
able to make decisions on his\her own behalf in the best interests of the
Children. In this case, it was only in the context of “attacking” the other
party or seeking to obtain an advantage in this proceeding, did the parents
make decisions not in the best interests of the Children. On this consideration
there is little to choose one parent over the other. In other words, both
parents appear to be able to make the right decisions for the Children but only
if the other parent is not in the picture at all.
[6] The Custody Judgment also dealt with a claim
by the Appellant’s spouse to be reimbursed for Canada Child Tax Benefits she
had received after the abduction in 2006 and which she subsequently had to
repay to the Canada Revenue Agency. As part of his challenge to the Minister’s
redetermination of his entitlement to the CCTB during the Period, the Appellant
referred to the following paragraphs in the
Custody Judgment in which the Ontario Superior Court ordered the relief sought
by his spouse:
[300] While
the children were with the Mother in Egypt, the Father continued to receive
Child Tax Benefits and Universal Child Care Benefits. As the Children were
not in Canada, it is CRA’s position that neither party was
entitled to these benefits. As a result, CRA had deducted the amount of the
benefits the Father received from the Mother’s benefits she was entitled to receive
since her return in December 2007. The amount had now been fully repaid by the
Mother. Whether the Father was entitled to these monies are between him and
CRA. On the other hand, clearly the Mother was deprived of the Child Tax Credit
while she has had the Children.
[301] The
total amount at issue for the Mother was $5,145.83 for Canada Child Tax Benefit
and $2,200 for Universal Child Care Benefit. There was really no issue as to
the quantum or that it has been recovered from the Mother by CRA.
[302] I am
satisfied that the Mother has established that the Father should repay to the
Mother the full amount of $7,345.83. It is not one half since the Mother was
fully entitled to these benefits since December 2007 and would have received
the entire amount but for the Father’s claim during 2006 and 2007.
[Emphasis
added.]
[7]
Notwithstanding its acknowledgement in paragraph 300 that the Appellant’s
entitlement to the CCTB was not for the Ontario Superior Court of Justice to
determine, the Court then went on to decide that the Appellant’s spouse had
been “deprived” of the CCTB while she had the children. The Appellant was not
happy with this outcome: he explained, with some understandable frustration,
that if he is unsuccessful in these appeals, he will have to repay to the
Canada Revenue Agency the CCTB he received during the Period (July 2007 to June
2008) even though under the Custody Judgment, he has already paid that amount,
plus amounts for months not covered by the Minister’s redeterminations, to his
wife.
[8]
While I can understand why he might feel this is unfair, it must be
remembered that Ricchetti, J. was dealing with the spouse’s claim for an amount
in respect of the Canada Child Tax Benefit in the context of the “Equalization
of Net Family Property”
under the Ontario Family Law Act. The payment ordered in respect
of what that Court found to be the spouse’s entitlement to an amount equivalent
to the CCTB is not relevant to the determination of the correctness of the
Minister’s redetermination of the Appellant’s entitlement to the CCTB during
the period July 2007 to June 2008. That depends entirely on his being able to satisfy
the legislation criteria in section 122.6 of the Income Tax Act:
“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,
…
(h) prescribed factors shall be
considered in determining what constitutes care and upbringing;
[9] The
“prescribed factors” referred to in paragraph (h) are listed in section 6302 of
the Income Tax Regulations:
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.
[10] The
assumptions upon which the Minister based his decision that the Appellant was
not eligible to receive the CCTB are set out at paragraphs 9(q) and (r) of the
Reply:
q)
at all material times between August 2006 and
June 2008 the children lived with Gihan in their settled and regular way of
life;
r)
at all relevant and material times between
August 2006 and June 2008: -
i)
the Appellant did not accompany the children to
or from medical appointments, did not arrange their medical appointments or
transportation to or from medical appointments;
ii)
the Appellant did not assist the children in
preparing for school, did not accompany the children to or from school or
arrange their transportation to or from school, did not attend parent-teacher
meetings, and did not otherwise arrange or participate in the academic needs of
the children;
iii)
the Appellant did not prepare meals for the
children;
iv)
the Appellant did not make arrangements for the
children to participate in recreational or athletic activities or arrange their
transportation to or from recreational or athletic activities;
v)
the appellant did not babysit the children or
make arrangement for babysitting services for the children, when required;
vi)
the Appellant did not generally proved guidance
and companionship to the children;
vii)
the Appellant did not supervise the daily
activities or daily needs of the children;
viii)
the Appellant did not exercise discipline or
control over the children;
ix)
the Appellant did not attend to the needs of the
children during either periods of illness or other periods requiring
intervention in respect of the children;
x)
the Appellant did not attend regularly to the
washing or dressing of the children;
[11] The
Appellant did not dispute that the children were not living with him during the
period but explained that was because of his spouse’s abduction of them. For
the same reason, he was wrongly prevented from being the parent who primarily
fulfilled the responsibility for the care and upbringing of the children. His
evidence was that throughout the time the children were with their mother, he
continued to maintain the household in the expectation of their return. He paid
for Sunday school for at least one of the children, even though as a result of
the abduction, she never attended. Similarly, he maintained medical insurance
for the children through his work.
[12] The
first question is whether during the Period (July 2007 to June 2008), the
children resided with the Appellant. I am satisfied that from July 2007 to the
date of their court-ordered return to Canada in November 2007, the children’s residence continued
to be the family home occupied by the Appellant. They left that home for the
purpose of a family vacation; it follows that it was intended they would
return. They were prevented from doing so only by their mother’s wrongful
detention of the children in Egypt. During their absence, the Appellant maintained the
family home in which their belongings and furnishings remained. In these
circumstances, I am prepared to find that the children “resided” with the
Appellant from July to November 2007. However, when the Appellant’s spouse
returned to Canada in December 2007, she was awarded custody of the
children. They lived with her; the Appellant had only limited access on some
evenings and weekends. Thus, even if the period of abduction is disregarded,
for the majority of the Period, from December 2007 to June 2008, the children did
not reside with the Appellant.
[13] By
the same token, the evidence is not there to support the finding that the
Appellant primarily fulfilled the responsibility of the children’s care and
upbringing after they were returned to Canada. The Appellant’s evidence of paying for Sunday school
and medical insurance (giving him the benefit of the doubt that this occurred,
at least in part, during the Period) falls far short of rebutting the
assumptions set out in paragraphs 9(r) and (s). The point of the CCTB criteria
is to ensure that the money follows the children – its purpose is to put funds
in the hands of the parent tasked with seeing to their needs. The Appellant has
not persuaded me that he was that parent.
[14] For
all of these reasons, the appeal must be dismissed.
Signed at
Ottawa, Canada, this 10th day of June, 2010.
“G.A. Sheridan”
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