Docket: 2009-2843(IT)I
BETWEEN:
LINDA MURPHY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on July 12, 2010, at Yarmouth, Nova Scotia.
Before: The Honourable
Justice Patrick Boyle
Appearances:
|
For the appellant:
|
The
appellant herself
|
|
Counsel for the respondent:
|
Melanie Petrunia
|
____________________________________________________________________
JUDGMENT
The appeal from the determination made
under the Income Tax Act, notice of which is dated
November 20, 2008, for the period from February 2008 to October 2008,
is dismissed without costs in accordance with the Reasons for Judgment attached
hereto.
Signed at Ottawa, Canada, this 23rd
day of August 2010.
"Patrick Boyle"
Citation: 2010 TCC 411
Date: 20100823
Docket: 2009-2843(IT)I
BETWEEN:
LINDA MURPHY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Boyle J.
[1]
The appellant, Mrs. Murphy,
has appealed the respondent’s determination that she was not entitled to the
Canada Child Tax Benefit (“CCTB”) in respect of her teenaged stepdaughter for
the period from February to October 2008.
[2]
It is
Mrs. Murphy’s position that her stepdaughter Melanie Murphy chose to
live with her father and her for six or seven months beginning in
February 2008. Before that time Melanie lived with her mother,
Ms. Spinney, during the week and stayed with her father on weekends. In
February 2008 Melanie’s boyfriend became a boarder at the home of her father
and stepmother. Melanie was 16 years old at the time in question.
According to Mrs. Murphy, Melanie also began living with them at the time
although she was still in regular contact with her mother.
[3]
In support of her
position Mrs. Murphy brought to Court a letter from her landlord’s
property manager confirming that Melanie resided with her and her husband in
the period. She also brought a copy of Melanie’s resumé from the period which
showed her address as that of her father and stepmother. She also provided a
copy of one of Melanie’s payslips from her part‑time job at a grocery
store which listed the same address. Neither the resumé nor the payslip also
listed the address of Melanie’s mother.
[4]
This was most helpful
evidence for Mrs. Murphy to bring to Court. Indeed, it is remarkably
similar in type to the documents that Melanie’s mother provided to the Canada
Revenue Agency (“CRA”) and upon which the CRA based its decision that
Ms. Spinney was entitled to the CCTB in respect of Melanie during the period
in question. While Ms. Spinney provided similar type evidence to the CRA
at the verification stage, she did not bring them to Court with her when she
was subpoenaed to attend nor did the respondent make them available to her.
[5]
Ms. Spinney
testified that Melanie continued to live with her throughout although Melanie
did spend more time at her father’s house once her boyfriend began living
there.
[6]
Melanie Murphy
also testified that she had continued to live with her mother throughout. She
acknowledged that she spent more time at her father’s once her boyfriend
started living at his house but she returned home to her mother’s every
evening, absent bad weather or the like, except for those weekends she normally
spent at her father’s.
[7]
She said that she kept
her personal belongings such as books, music and computer at her mother’s house
throughout. She explained that she had used her father’s address for her resumé
and her part‑time job with his permission because her mother was talking
about moving (and has since moved). Melanie said her doctor, dentist, health
and hygiene matters were taken care of with her mother and that she generally
ate at her mother’s house. Her mother provided her with lunch money and with
dinners although she did sometimes eat dinners during the week at her father’s
house. Melanie testified that she was fortunate to have lots of supportive
family and that her stepmother does provide helpful family support for her.
However, she considers her mother to have been her primary caregiver throughout.
[8]
All three witnesses
testified in a clear and forthright manner and I have no doubts as to the
credibility of each of their versions of the events.
[9]
In order to qualify for
the CCTB in respect of Melanie, section 122.6 of the Income Tax Act
(the “Act”) requires that Mrs. Murphy be able to satisfy the Court
that:
(i)
Melanie resided with
her and her husband in the period in question; and
(ii)
Mrs. Murphy
primarily fulfilled the responsibility for Melanie’s care and upbringing during
the period.
[10]
For this purpose, care
and upbringing require consideration of the factors listed in
Regulation 6302 which include, amongst other things, health and hygiene,
guidance and companionship, arranging school and other activities, and
supervision of daily needs and activities.
[11]
It is
Mrs. Murphy’s position that Melanie changed which parent she lived with in
February 2008 with the result that Mrs. Murphy became the person
entitled to the CCTB until Melanie went back to live with her mother. It is
clear that the parent entitled to receive the CCTB from month to month can
change: Matte v. The Queen, 2003 DTC 5075 (FCA).
[12]
The evidence presented
is consistent with Melanie living during those six or seven months at times
with her father and stepmother and at times at her mother’s. It may be that it
is possible for CCTB purposes that a child can reside with more than one parent
at a time. It is not clear that the child can have only one residence. Nor am I
sure that the income tax concept of “residence” of a taxpayer in a country is
readily applicable to deciding with which parent a child “resides”. I certainly
do not think it can be as easily applied as the reasons in S.R. v. The Queen,
2003 TCC 649, [2004] 1 C.T.C. 2386, Grimard v. The Queen, 2008
TCC 98, 2008 DTC 4484, and Lapierre v. The Queen, 2005 TCC 720,
2008 DTC 4248, appear to suggest.
[13]
While it may be that
the CCTB provisions permit a child to reside with more than one parent at a
time, and that Melanie may have lived with and therefore resided with both her
parents, the CCTB provisions provide that, in addition to residing together,
the CCTB is payable only to the parent who is the child’s primary caregiver as
described above. It is clear that only one parent can be the “primary”
caregiver.
[14]
Even though Melanie may
have lived with her father and stepmother, Mrs. Murphy’s appeal cannot
succeed because she was not also the parent who primarily fulfilled the
responsibility for Melanie’s care and upbringing. The evidence satisfies me
that Melanie’s mother continued to be primarily responsible for Melanie’s
overall care and upbringing notwithstanding the change in Melanie’s living
arrangements in the six or seven‑month period in question.
[15]
The appeal is
dismissed.
Signed at Ottawa, Canada,
this 23rd day of August 2010.
"Patrick Boyle"
CITATION: 2010 TCC 411
COURT FILE NO.: 2009-2843(IT)I
STYLE OF CAUSE: LINDA MURPHY v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Yarmouth, Nova Scotia
DATE OF HEARING: July 12, 2010
REASONS FOR JUDGMENT BY: The
Honourable Justice Patrick Boyle
DATE OF JUDGMENT: August 23, 2010
APPEARANCES:
|
For the
appellant:
|
The appellant herself
|
|
Counsel for the
respondent:
|
Melanie Petrunia
|
COUNSEL OF RECORD:
For the appellant:
Name:
Firm:
For the respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa, Canada
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