Citation: 2007TCC633
Date: 20071026
Docket: 2007-979(IT)I
BETWEEN:
MICHELINE CANTIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1] This is an appeal
from reassessments, notices of which are dated December 13, 2006,
concerning the Canada Child Tax Benefit for the base taxation years 2004 and
2005.
[2] The issue involves
determining whether the Minister of National Revenue (the "Minister")
correctly concluded that the appellant was not an individual entitled to
receive benefits because she was not the parent who primarily fulfilled the
responsibility for the care and upbringing of her child Miguël, with respect to
the base taxation years 2004 and 2005, for the periods from March to
June 2006 and from July to August 2006 (the "periods in
question").
[3] On or about February 9, 2007, the appellant served a
notice of objection on the Minister for the notices of reassessment dated
December 13, 2006, with respect to the base taxation years 2004 and 2005.
[4] To establish and
confirm the notices of reassessment, the Minister relied on the following
assumptions of fact, among others:
(a)
The appellant is the
mother of Miguël Bergeron, born on July 9, 1996;
(b)
The appellant and her
former spouse, Jacques Bergeron, separated in February 1998;
(c)
During the periods in
question, the appellant and her former spouse had joint custody of their son,
and he spent more time at his father's home;
(d)
During the periods in
question, the Minister determined that Mr. Bergeron was the individual who
primarily fulfilled the responsibility for the care and upbringing of Miguël.
[5] Under a Quebec Superior
Court judgment dated October 6, 2004
(the "judgment"), Mr. Bergeron was granted sole custody of Miguël, and
his mother was granted the following access rights effective September 2, 2004:
-
every
second weekend, from Thursday evening at 5:15 p.m. until Monday morning;
-
one
week at Christmas or at New Year's, alternately from year to year, from
December 22 at 7:00 p.m. to December 29 at 7:00 p.m., and/or from December 29 at 7:00 p.m. to January 5 at
7:00 p.m.;
-
one
month during the summer, with a maximum of three consecutive weeks of the
appellant's choosing;
-
one
week at spring break every year.
[6] On January 27, 2006, Miguël's parents
agreed on new conditions for the appellant's access rights, namely, in every 14-day
period, he would spend 6 days with his mother and 8 days with his
father.
[7] In a judgment dated
April 24, 2006, the
Quebec Superior Court dismissed the application for a safeguard order made by
the appellant to have the Court recognize the custody conditions for Miguël in
accordance with the agreement described in the preceding paragraph.
[8] Under the terms of
an agreement concluded by Miguël's parents on July 10 and 11, 2007, which
was homologated by the Quebec Superior Court on July 13, 2007, custody of Miguël was granted to
Mr. Bergeron. As of July 1, 2007, the appellant's access rights for Miguël
were every second weekend, one week at Christmas or one week at New Year's,
four weeks during the summer, and one week at spring break every year.
Appellant's position
[9] Ms. Cantin alleges
that since January 27, 2006, she has been continuously fulfilling the
responsibility for the care and upbringing of her child and, more specifically,
has been attending meetings with Miguel's teachers and special education
teachers, making appointments with doctors, dentists and other health
professionals and involving herself in the activities and hobbies that her son
wanted to participate in or do. In support of her testimony, Ms. Cantin
submitted a copy of a letter from the school, a copy of an invoice from an
optometrist's clinic and copies of medical consultations for Miguël.
[10] Ms. Cantin also
alleges that since January 27, 2006, she has had custody of Miguël approximately 43% of the
time, and if the time during which her mother, Carmen Cantin, babysat him while
he was in his father's custody is considered, Ms. Cantin had custody of
Miguel for approximately 60% of the time. It is important to note that Ms. Cantin
and her mother live in the same duplex: Ms. Cantin lives upstairs, and her
mother lives downstairs. In support of her allegations, Ms. Cantin
submitted a solemn affirmation from her mother, Carmen Cantin, and one from her
friend Serge Desgroseillers, which confirm that Miguël was regularly babysat by
his grandmother when he was in his father's custody.
Testimony of Jacques
Bergeron
[11] Mr. Bergeron stated
that he has had sole legal custody of Miguël since 2004. His former spouse was never
granted legal or joint custody of Miguël.
[12] Mr. Bergeron also stated
that he is the parent who primarily fulfils the responsibility for the care and
upbringing of Miguël. In support of this statement, counsel for the respondent
submitted documents in a bundle, including confirmation from a dental clinic, a
letter from an optometrist's clinic, a statement of account from the Arc-en-ciel
daycare centre, a registration form for the Élan school, a pharmacy statement,
an invoice for school services, invoices for the purchase of clothing and a
back pack, confirmation of school transportation and medical reports.
[13] Mr. Bergeron admitted
that the child's maternal grandmother would babysit Miguël when he had to take
training courses out of town. During the periods in question, this happened
twice, for periods of five days each time. He also admitted having a worker at
the Fleurs et Miel daycare centre babysit Miguël when he had to work evenings.
He also noted that his former spouse would have her mother babysit Miguël when
she had to work evenings at the call centre.
[14] Mr. Bergeron also
admitted having left his son to play alone near the railway tracks located
within approximately 10 minutes' walking distance from where the child's
mother lives. Mr. Bergeron stated that this happened at the request of his son,
who enjoyed playing at that place, and that the periods during which he was
left unsupervised generally ranged between two and three hours.
Analysis
[15] The definition of
"eligible individual" for the purposes of the Canada Child Tax Benefit
is specified in section 122.6 of the Income Tax Act (the "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,
(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 122.6 eligible individual (f) does not apply in prescribed
circumstances, and
(h) prescribed factors shall be
considered in determining what constitutes care and upbringing;
[16] For the application
of paragraphs (g) and (h) of the definition of "eligible
individual" under section 122.6 of the Act, sections 6301 and
6302 of Part LXIII of the Income Tax Regulations (the "Regulations")
provide as follows:
NON-APPLICATION OF PRESUMPTION
6301. (1) For the purposes of paragraph (g)
of the definition "eligible individual" in section 122.6 of the Act,
the presumption referred to in paragraph (f) of that definition does not
apply in the circumstances where
(a) the female parent of the
qualified dependant declares in writing to the Minister that the male parent,
with whom she resides, is the parent of the qualified dependant who primarily
fulfils the responsibility for the care and upbringing of each of the qualified
dependants who reside with both parents;
(b) the female parent is a
qualified dependant of an eligible individual and each of them files a notice with
the Minister under subsection 122.62(1) of the Act in respect of the same
qualified dependant;
(c) there is more than one female
parent of the qualified dependant who resides with the qualified dependant and
each female parent files a notice with the Minister under subsection 122.62(1)
of the Act in respect of the qualified dependant; or
(d) more than one notice is filed
with the Minister under subsection 122.62(1) of the Act in respect of the same
qualified dependant who resides with each of the persons filing the notices if
such persons live at different locations.
FACTORS
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.
[17] Only the parent with
whom the child resides is the "eligible individual" entitled to receive
the Canada Child Tax Benefit.
[18] In this case, it has
been established that during the periods in question, Miguël stayed with his
father for eight days and with his mother for six days per two-week period, and
that under the terms of a judgment, the father had legal custody of Miguël. The
appellant had access rights, not joint custody rights.
[19] The testimonies
given by the appellant and by Mr. Bergeron, although contradictory on certain
aspects about Miguël's main residence, reveal that during the periods in
question, he lived mainly with his father. I do not think it is necessarily appropriate
in the circumstances to credit to the appellant the number of days during which
Miguel was babysat by his maternal grandmother. The solemn affirmation
submitted by the maternal grandmother did not contain sufficient information
about the number of days and the precise dates when she had custody of Miguël
while he was supposed to be with his father.
[20] Because Miguël did
not live only with his mother, the presumption of paragraph (f) of
the definition of "eligible individual" in section 122.6 of the Act
cannot apply in this case, and it must be determined which parent primarily
fulfilled the responsibility for the care and upbringing of Miguël during the
periods in question. To do so, the factors specified in section 6302 of
the Regulations must be considered.
[21] In this case, both
parents showed that they fulfilled the responsibility for the care and upbringing
of Miguël and submitted documentary evidence to that effect.
[22] The evidence showed
that there was some competition between the parents in this regard. The mother
would purchase clothes and school material and would make appointments for her
son at the medical clinic, with the optometrist, etc., while the father would
do the same thing and would try to prevent the mother from making appointments
with health professionals, among others.
[23] In light of the
factors listed in section 6302 of the Regulations, which are based on care,
upbringing and participation, and in light of the evidence submitted in this
case, I must conclude that the appellant did not adduce sufficient evidence to
show on a balance of probabilities that she had met the conditions specified in
paragraph (g) of the definition of "eligible individual"
in section 122.6 of the Act, namely, that during the periods in question,
she was the parent who primarily fulfilled the responsibility for the care and
upbringing of her son Miguël.
[24] Accordingly, the
appeal is dismissed.
Signed at Ottawa, Canada, on this 26th day of October 2007.
"Réal Favreau"
Translation certified true
on this 31st day of January 2008
Michael Palles, Reviser
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