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Citation: 2007TCC700
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Date: 20080111
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Docket: 2007-2480(IT)I
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2007-2240(IT)I
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BETWEEN:
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DANNY DEBLOIS,
MARIE-ANDRÉE PROVENCHER
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Appellants,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH
TRANSLATION]
AMENDED REASONS FOR JUDGMENTS
Tardif J.
[1] These are
two separate appeals that share in common the same set of facts, however; accordingly,
the Respondent's request for a common hearing on the two appeals was allowed.
[2] The
appeals concern some decisions of the Respondent under which it was decided
that the Appellants were not entitled to child tax benefits for the period from
July 2004 to June 2005 inclusive (2003 base taxation year) and for the months
of July 2005 to June 2006 (2004 base taxation year) in regard to their son, who
was born in 1990.
[3] The
appeal also covers the decisions under which the female Appellant was denied
child tax benefits for the period from September 2006 to December 2006 (2005
base taxation year), and the amounts for goods and services tax (GST) credits
for the period from July 2004 to April 2005 (2003 taxation year), from July
2005 to April 2006 (2004 taxation year) and from October to January 2007 (2005
taxation year).
[4] Finally,
the appeal covers the Respondent's decision under which the female Appellant
was denied the energy cost benefit for the period from July 2005 to June 2006
(2004 base taxation year).
[5] The
issues are the following:
Docket
Marie-Andrée Provencher (2007-2240(IT)I):
(a) Was the Minister correct in reviewing the
Appellant's child tax benefits and determining that the amounts received in
excess came to $2,719.00 for the period from July 2004 to June 2005 for the
2003 base taxation year, to $1,744.52 for the period from July 2005 to June
2006 for the 2004 base taxation year, and to $914.19 for the period from
September 2006 to December 2006 for the 2005 base taxation year?
(b) Was the Minister correct in reviewing the
Appellant's goods and services tax credit and determining that the amounts
received in excess came to $342.00 for the period from July 2004 to April 2005
for the 2003 taxation year, to $227.00 for the period from July 2005 to April
2006 for the 2004 taxation year, and to $116.00 for the period from October
2006 to January 2007 for the 2005 taxation year?
(c) Was the Minister correct in reviewing the
energy costs benefit and determining that the amount received in excess came to
$250.00 for the 2004 base taxation year?
Docket Danny
Deblois (2007-2480(IT)I):
Did the
Minister correctly deny the Appellant's child tax benefits for the base
taxation years 2003 and 2004?
[6] The facts
are very simple: the Appellants are the parents of a boy born in 1990; they
divorced in July 1998. Under the divorce decree, the female Appellant was given
legal custody of the child. This judgment has never been reviewed or amended.
[7] The
Appellants both testified. Both stated that they had complied with the
requirements of the Act and the Regulations and were entitled to the tax
benefits for the periods in question.
[8] The
couple's son also testified at the Court's request and in the absence of the
parents, who agreed to withdraw during the intervention of their adolescent
son, aged 17.
[9] He
testified brilliantly. The only finding that I make from this testimony is that
he loves both his parents, that he needs their presence and that they both
assume their responsibility toward him. He deplored the tensions that exist
between his father and mother.
[10] His
intervention has a totally neutral effect, that is, it favours neither party in
any way.
[11] The
evidence from the Appellants' testimony established that although the legal
custody of the child had been awarded to the mother, he had indeed resided with
his father for a certain period.
[12] His
mother resided in the Beauce, but was not neglectful of her son. She was seeing
him and ensuring his participation in his practice sessions. She took an
interest in his health, his education and in the various needs of an adolescent
of that age.
[13] The male
Appellant stated that his son had resided with him in Quebec
City most of the time; he supported his statement by
proving that his son attended a school in the neighbourhood. He also drew
attention to a highly relevant objective fact when he stated that the female
Appellant was living in the Beauce, thus making it quite improbable that a
teenager would live with her and attend each day a school in the Quebec City area.
[14] For her
part, the female Appellant, more organized and more communicative, had prepared
her case much more effectively. She tabled a voluminous file containing many
documents attesting that her son was living with her. These were mainly
documents indicating that the teenager had the same address as hers.
[15] Asked to
provide some explanations in the face of the obvious contradiction, the female
Appellant had to provide some particulars and make certain clarifications;
things were then explained and the male Appellant's version proved to be
confirmed for two lengthy periods.
[16] Although
the female Appellant had legal custody, she admitted that her son attended
school in Quebec City and that
he was residing with his father. She hastened to add that the male Appellant
had done nothing to obtain a change in custody; she stated that she came to Quebec City almost every weekend to see her
son and attend the practices and matches in which he competed in the course of
his extracurricular activities.
[17] The
record clearly disclosed that both Appellants were interested in and concerned
with the equilibrium and development of the teenager, from their paternal and
maternal perspectives.
[18] In the
interest of his equilibrium and well-being, the young man needs both his
parents, who each have their own vision as to their son's development. In
addition, the young man sees and understands the qualities and weaknesses of
his parents. In such a context, no winner or champion can be determined from
the evidence. We conclude, therefore, that both parents are ex aequo.
Applicable
legal provisions
[19] The
following definitions apply in this case. Only an eligible individual within
the meaning of section 122.6 of the Act can claim the Canada Child Tax Benefit.
An eligible individual is defined accordingly in section 122.6:
122.6 "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 purpose 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 (f) does not apply in prescribed circumstances, and
(h) prescribed factors shall
be considered in determining what constitutes care and upbringing;
252(1) In this Act, words referring to a child of a taxpayer
include
. . .
(c) a child of the taxpayer's spouse or
common-law partner;
[20] The tests
for determining what constitutes care and upbringing of the child are
prescribed in section 6302 of the Income Tax Regulations (the
"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.
[21] To satisfy the definition of an eligible individual, a taxpayer must
fulfil two conditions: first, he must reside with the qualified dependent and,
second, he must be the parent who primarily fulfils the responsibility for the
care and upbringing of the qualified dependant: Loyer v. Canada, [2001]
T.C.J. No. 71, para. 14 (QL).
[22] Overall,
it is clear that both Appellants were very much attached to the child and that
they devoted much time and energy to remaining in close contact with him over
the course of the periods in question.
[23] In this
case, it is more a question of determining whom the child was living with
during the periods in question. It should be noted that the eligible individual
may change from one month to another since the question of who is the eligible
individual is assessed "at any time": Loyer, supra,
para. 13.
[24] In Lapierre
v. Canada, [2005] A.C.I. no. 538 (QL), the Court defined the notion of
"reside with the qualified dependent" as follows:
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.
[25] The male
Appellant did not deem it appropriate to take the initiative to obtain a
judgment to confirm the de facto situation. The son has clearly chosen
to live with his father, with the implied consent, at least, of his mother, the
female Appellant.
[26] The
evidence has demonstrated unambiguously that the child who is the subject
matter of the benefits resided with his father from September 2005 to March
2006 inclusive (2004 base taxation year) and from September 2006 to June 2007
inclusive (2005 base taxation year). Outside those periods, he resided
primarily with his mother.
[27] As to the
other tests, I think that in this case they have a neutral effect since,
clearly, the interest that both the male and female Appellants had, at least
during the period in question, in the care and upbringing of their adolescent
son was very comparable.
[28] I do not
think the evidence has demonstrated a significant demarcation between the
attitude and conduct of the mother and father.
[29] Obviously,
the approaches of each of them are quite different; these differences derive
essentially from the inescapable reality that a mother generally sees things
differently from the father, and ideally one seeks a balance and consensus of
the two parents.
[30] When the
father and mother are separated and relations are so tense that they display
some aggressiveness, it becomes very difficult if not impossible to assign
different appraisal scores to the two parents, especially if the young person
to whom the benefits apply really needs both parents and is in a position to
understand the situation perfectly.
[31] For all
these reasons, I am allowing both appeals from the determinations made under
the Income Tax Act by the Minister and the matters are referred back to
the Minister for reconsideration on the basis that the Appellant, Danny
Deblois, resided with the minor child during the months
of September 2005 to March 2006 inclusive (2004 base taxation year) and during
the months of September 2006 to June 2007 inclusive (2005 base taxation year).
[32] In the
course of the reconsideration, the Minister will also have to consider the fact
that the Appellant Marie-Andrée Provencher resided with the minor child during
the months of July 2004 to June 2005 inclusive (2003 base taxation year),
during the months of July 2005 to August 2005 inclusive (2004 base
taxation year), during the months of April 2006 to June 2006 inclusive, and
during the months of July 2006 to August 2006 inclusive (2005 base taxation
year), in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this
11th day of January 2008.
Tardif
J.
on this 28th day of January 2008.
Monica F. Chamberlain, Reviser
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