Docket: 2008-413(IT)I
BETWEEN:
CAMILLE BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on January 14, 2009 at Vancouver, British Columbia
By: The Honourable
Justice Judith Woods
Appearances:
|
Counsel for the Appellant:
|
Eugene
Kung
|
|
Counsel for the Respondent:
|
Whitney Dunn
|
____________________________________________________________________
JUDGMENT
The appeal in respect of the child
tax benefit for the 2004 and 2005 base taxation years is allowed, and the
matter is referred back to the Minister of National Revenue for reconsideration
and redetermination on the basis that the appellant is entitled to the child
tax benefit until his daughter reached the age of 18.
The
appellant is entitled to costs.
Signed at Vancouver, British Columbia this 16th day of January 2009.
“J. Woods”
Citation: 2009TCC38
Date: 20090116
Docket: 2008-413(IT)I
BETWEEN:
CAMILLE BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Delivered orally from the Bench on January 16, 2009)
Woods J.
[1] These are reasons delivered orally in the matter of
Camille Bouchard and Her Majesty the Queen.
[2] The issue in the appeal is whether Mr. Bouchard is
entitled to receive the child tax benefit in respect of a period that he was
incarcerated. The period at issue is from October 1, 2005 until April 7, 2007
which is the date at which Mr. Bouchard’s daughter attained the age of 18.
[3] In the reply filed by the Minister of National
Revenue, the reason that was given for disallowing the claim was that Mr.
Bouchard did not reside with his daughter during his period of incarceration.
My analysis will be limited to this issue and I have assumed that the other
statutory requirements are satisfied.
[4] For several years prior to his incarceration, Mr.
Bouchard took care of his daughter as a single parent. Just prior to the
incarceration, they lived in a two bedroom apartment in Nanaimo, British Columbia.
[5] In September 2005 Mr. Bouchard was committed to a
federal prison where he stayed for 20 months. At the time of the committal, the
daughter was 17.
[6] The daughter continued to stay in the Nanaimo
apartment for a couple of months after her father went to prison. She then gave
the apartment up and moved in with a family that she was acquainted with.
During the incarceration, the daughter stayed with a series of three families.
[7] Throughout this time, Mr. Bouchard kept in regular
contact with both his daughter and the families. He also supplied funds for the
payment of rent to the families and for his daughter’s other expenses. I should
mention, however, that there was an exception to this during the first three
months of the incarceration, when it was difficult for Mr. Bouchard to make
contact with his daughter.
[8] The question to be decided in this appeal is whether
Mr. Bouchard’s incarceration has disentitled him to receive the child tax
benefit on the basis that he did not reside with his daughter during this
period.
[9] For reasons that I will give, my conclusion on the
facts of this case is that the period of incarceration should not disentitle
Mr. Bouchard to the child tax benefit.
[10] I will first describe the child tax benefit regime.
Since 1993, the government has provided financial assistance to low and medium
income families through a grant system established under the Income Tax Act.
This legislation replaced the prior benefit system which was known as the
family allowance. Under the child tax benefit system, a monthly benefit is
given to the parent who fulfills the primary responsibility of the care and
upbringing of the child. It is not in dispute that Mr. Bouchard was such a
parent.
[11] However, the legislation not only requires the parent
to care for the child, it also requires the parent to reside with the child. It
is this latter requirement that is at issue here.
[12] In a situation such as this, one should ask the
question why the legislation has two separate requirements – a residence
requirement and a care requirement. Why would not the care requirement be
sufficient?
[13] It seems to me that the residence requirement does add
something to the legislation because it clarifies that the benefit is to be
given to the custodial parent in a divorce situation.
[14] The residence requirement can be difficult to
interpret in some situations, however.
[15] One example of such a difficulty was discussed in a
case called Fiogbe. There Justice O’Connor suggested in obiter
that if a child has been hospitalized for an extended period, that should not
necessarily disentitle one of the parents to the benefit.
[16] Another example was raised in a decision called Penner.
In this case, the Court had to consider if the residence requirement was
satisfied if a child lived somewhere else in order to go to school. Justice
Beaubier concluded that this should not disqualify the parent to the benefit.
[17] These are examples of where a child leaves the family
home for a period of time. Should the answer be any different if the parent
leaves the home? What if a custodial parent is required to work out of town for
an extended period and hires a babysitter to look after the child? Or what if
the custodial parent is absent for a period of time because they have been
committed to prison.
[18] In my view, the child tax benefit provisions should be
interpreted in a compassionate way in these types of circumstances so as not to
frustrate the obvious intention of Parliament to assist low income families.
[19] Where there is one parent who has custody of the child
and takes care of the child, generally that parent should be entitled to the
child tax benefit even though the parent may not be physically under the same
roof as the child for a period of time.
[20] The circumstances in which the daughter found herself
in here are tough for a 17 year old. To deny the benefit to her custodial
parent who took care of her would be the antithesis of what Parliament had in
mind in enacting the family benefit regime.
[21] In my view, this is a proper case in which to give an
expansive meaning of the phrase “resides with.” The daughter did not acquire
another habitual abode during her father’s incarceration and her father
maintained responsibility for her care. I find that the daughter did not give
up her ordinary residence with her father, even though it was interrupted for a
significant period.
[22] The appeal will
be allowed, with costs.
Signed at Vancouver, British Columbia
this 16th day of January 2009.
“J. Woods”
CITATION: 2009TCC38
COURT FILE NO.: 2008-413(IT)I
STYLE OF CAUSE: CAMILLE BOUCHARD AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 14, 2009
REASONS FOR JUDGMENT BY: The
Honourable Justice J. Woods
DATE OF JUDGMENT: January 16, 2009
APPEARANCES:
|
Counsel for the
Appellant:
|
Eugene Kung
|
|
Counsel for the
Respondent:
|
Whitney Dunn
|
COUNSEL OF RECORD:
For the Appellant:
Name: Eugene Kung
Firm: The British Columbia Public Interest Advocacy Society
Vancouver, British Columbia
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
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