Citation: 2007TCC717
Date: 20071219
Docket: 2007-2045(IT)I
BETWEEN:
MANON THERRIEN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] This is an appeal from a redetermination by the
Minister of National Revenue (the Minister), that the Appellant is not eligible
to receive the Canada Child Tax Benefit for Maximilian Baer.
[2] In making the redetermination for the 2005 base
year, the Minister relied on the following facts outlined in paragraph 5 of the
Reply to the Notice of Appeal (the Reply):
[TRANSLATION]
a) Maximilian Baer is a German citizen born
September 18, 1990;
b) Maximilian Baer came to live with the
Appellant for the 2006-2007 school year under a cultural exchange program;
c) The Appellant never had legal custody of
Maximilian Baer.
[3] The Appellant admitted to all three allegations.
[4] The Appellant explained that her family was a
host family for exchange students through an association called ASSE: American
Scandinavian Student Exchange. In Quebec, this association operates under the
umbrella of Programmes internationaux d’échange étudiants.
[5] The Quebec ASSE coordinator is Pierre
Constantin. The Sherbrooke region representative is Grace Benoît.
[6] At the hearing, the Appellant repeated what she
outlined in her Notice of Appeal. In this regard, I cite the relevant remarks
from this notice:
[TRANSLATION]
... We took in a 15-year-old boy from August 9, 2006, until July 4,
2007, which means that he lived under our roof for eleven months. He had to go
to school throughout the school year and pass his secondary IV (it was a
cultural exchange). This means that we had to enrol him in school, ensure he
had good friends, register him for extracurricular activities, take him places,
check his homework, his health, ensure he went to his classes, teach him about
our culture, our French language, feed him, help him discover our country,
provinces and cities by travelling, know the laws, the environment. We are
very aware that we did not have legal custody of the child, but we had to take
on the responsibilities of parents here in Quebec. This means we had the same
amount of responsibility as far as ours. We were his only family in Quebec.
We had to meet 100% of his needs just as a parent must for a child. We ask you
to review our application. We have already had other young people from other
countries and the government has always supported us.
...
[7] She contends that until this refusal to grant the
Child Tax Benefit, the host families have always claimed and received it.
[8] The Appellant filed several documents in a
bundle, one of which was from ASSE Canada. It was addressed to the host family
on July 27, 2006, and is signed by Monique Constantin.
[9] There are two paragraphs. The second one reads
as follows:
[TRANSLATION]
...
Here are some of the documents you will require:
...
For your Canada Child Tax Benefit:
– The RC‑66 form to be completed
– Copy of the Host Family Placement Form
– Passport copy
– And you must make a photocopy of the visa in the
student’s passport
...
[10] The RC-66 form is the application for the Canada
Child Tax Benefit.
[11] A document filed by the Appellant is the fourth
page of an ASSE text. This page contains two elements: the first is the “ASSE
Student Program Rules and Consent Agreement”, and the second is the “ASSE/Host
Family Agreement”. The agreement was signed by the Appellant and her spouse on
January 30, 2006, and by the ASSE representative, Ms. Benoît, on February 1,
2006.
[12] The agreement reads as follows:
ASSE/HOST FAMILY AGREEMENT: We agree to
host an ASSE exchange student, who is unrelated to our family, and agree to
attend the host family orientation meeting prior to the student’s arrival. We
have read and fully understand the above ASSE Student Rules and agree to adhere
to them. We agree to cooperate with the ASSE organization and its
representatives. We understand that ASSE may not be able to accept all host
family applicants and that ASSE has the right to accept and reject a host
family applicant at any time. We also acknowledge that ASSE has the final
authority in all decisions concerning discipline, student placements, length of
home stay or time in area, and students’ arrival and departure dates. We
realize that failure to cooperate with ASSE can result in a student being
removed from a family and relocated or returned to his/her home country. In
the event that we are unable or unwilling to continue hosting our ASSE exchange
student due to unforeseen circumstances, we shall provide ASSE with adequate
notice allowing the program a reasonable period of time to secure a suitable
alternative host family.
[13] During cross-examination, the Appellant admitted
that she did not have to pay for anything for Maximilian or cover any school
fees or medical insurance. Maximilian has had own pocket money. He had his
own medical insurance. He regularly communicated with his parents using a
computer and the telephone. The Appellant said she had to pay $20 for a
vaccine.
[14] Counsel for the Respondent filed an excerpt from
the ASSE website as Exhibit I-2. A paragraph of this excerpt is called: “A
Priceless Investment”. This text says that apart from room and board, there
are no other financial obligations. The paragraph reads as follows:
A Priceless Investment
If you are concerned about the cost of hosting an ASSE exchange student,
rest assured; your financial obligation is minimal. You merely furnish meals
and a room. In fact, your student may even share a room with a child of the
same sex who is close in age. Although not a motive to host, in some countries
you may deduct a small part of your taxable income by hosting an exchange
student (check with your tax adviser). ASSE students pay for their own airfare
and provide their own medical and liability insurance. Spending money is the
responsibility of the student and his or her natural parents. Your most
important contribution is far from monetary. It comes from your heart—a
willingness to welcome this student to your country and into your home by
making him or her feel like a true member of the family.
[15] Exhibit I-3 is
called “Declaration of Parental Authority”. It is a document from Immigration
et Communautés culturelles du Québec. The parents’ signatures are on the form,
as is their agreement “to delegate custody, supervision and education” of their
son to Pierre Constantin. There are two statements regarding this delegation
that parents can select. They are a follows:
This delegation entails ensuring custody,
supervision and education of this minor under conditions that are in the
child's best interest and that respect the child's rights.
This delegation entails covering all
costs related to the minor child's stay in Quebec and ensuring custody,
supervision and education under conditions that are in the child's best
interest and that respect the child's rights.
[16] The first statement
was selected.
[17] There is another document accompanying the
one regarding parental authority called: “Declaration of guardianship for a
minor child”. This declaration was signed by Mr. Constantin, who undertook to
“...commit to ensuring the custody, supervision, and education of the minor
child identified above, under conditions that are in the child’s best interests
and that respect the child’s rights”.
[18] Exhibit I-4 is a certificate of financial
responsibility signed by Maximilian’s German parents. They undertake to
provide their child with $1,500 during his stay in Canada.
[19] Oriana Leon, officer
with the Ministère de l’immigration du Québec, testified at the request of
counsel for the Respondent. She talked about a delegation of moral authority.
When foreign parents send their underage child to study in Quebec, the parents
must give a delegation of moral authority to an individual in Canada who is a
permanent resident or Canadian citizen. With respect to Exhibit I-3,
“Declaration of parental authority”, she said it was a delegation of moral
parental authority signed by both parents, given to Pierre Constantin, director
of the ASSE exchange program. If there is a problem with the minor, this
person will act as the link between the Department and the biological family.
The Department does not know the host families.
Analysis and conclusion
[20] For Canada Child Tax Benefit purposes, the
relevant portions of the definitions of “eligible individual” and “qualified
dependant”, read as follows 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,
...
“qualified dependant” at any time means a person who at that time
(a) has not attained the age of 18 years,
...
[21] These definitions refer only to the mother
or to the father of the qualified dependant.
[22] However, subsection 252(1) of the Act
expands on the meaning of the term “child” and subsection 252(2) of the Act
likewise expands on the meaning of the terms “mother” and “father”.
[23] Subsection 252(1) of the Act means that the
individual who is wholly dependent on a taxpayer for support and of whom the
taxpayer has, in law or in fact, the custody and control, is considered to be
the taxpayer’s child.
[24] Subsection 252(2) of the Act means that the
taxpayer is then considered to be the mother or the father of this child.
[25] I cite the relevant parts of these
definitions:
252(2) Relationships
In this Act, words referring to
a) a
parent of a taxpayer include a person:
(i) whose child
the taxpayer is,
...
252(1) Extended meaning of “child”
In this Act, words referring to a child of a taxpayer include
(a) a person of whom
the taxpayer is the legal parent;
(b) a person who is
wholly dependent on the taxpayer for support and of whom the taxpayer has, or
immediately before the person attained the age of 19 years had, in law or in
fact, the custody and control;
(c) a child of the
taxpayer’s spouse or common-law partner; and
(d) [repealed]
(e) a spouse or
common-law partner of a child of the taxpayer.
[26] It is admitted that neither the Appellant
nor her spouse are Maximilian’s mother or father. In order for them to be
considered parents, Maximilian would have to be wholly dependent on them and
they would have to have had custody and, in law or in fact, control of him.
[27] Let us then address the first requirement:
that the child is wholly dependent on the taxpayer. The evidence showed this
was not at all the case. The Appellant provided room and board as part of the
host family’s responsibilities. This is generous on her part and no one is
contesting this. But she did not pay for the clothing, pocket money or medical
insurance. Maximilian was certainly not wholly dependent on the Appellant.
[28] The second requirement is to have, in law
or in fact, custody and control of the child. These words have to do with
parental authority.
[29] According to the document signed by the
German parents called “Declaration of parental authority”, the German parents
declared that they held parental authority but they allowed some exercise of
this of parental authority by signing the document.
[30] Article 601 of the Civil
Code of Québec, provides that the person having parental authority may
delegate the custody, supervision or education of the child. Article 1460 of
the Code sets out the obligations of a person who, without having parental
authority, is entrusted, by delegation or otherwise, with the custody,
supervision or education of a minor.
[31] I do not intend to thoroughly analyze the
case law on article 601 of the Civil Code of Québec, seeing as the Appellant does not
meet the first requirement of paragraph 252(1)(b) of the Act. However,
it is clear that the delegation carried out pursuant to article 601 of the Civil
Code of Québec is not a transfer of parental authority, although, in
exceptional cases, there may be an extended delegation that could lead to a
deprivation of parental authority. When it is only temporary, such as in the
case of a child attending boarding school for a school year or another school
authority, it has no effect other than the power or duty on the part of the
delegated party to exercise a certain degree of parental authority on the child
left in its care.
[32] The delegation in this case is not a
transfer of parental authority. The German parents never relinquished their
parental authority. The delegation permitted the exercise of certain aspects
of parental authority by the delegated party in place of parents who are far
away. Moreover, this delegation was made to the provincial coordinator and not
to the host family.
[33] I have analyzed this
delegation of parental authority for the purposes of examining the law in this
matter. But I must point out that the Appellant admitted from the start that
she did not have legal custody of the child. She was right.
[34] As the Appellant is
not the child’s mother and the child was not wholly dependent on her and she
did not have legal custody in law or in fact, she did not possess the status of
eligible individual for the purposes of the Canada Child Tax Benefit.
[35] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 19th day of
December 2007.
“Louise Lamarre Proulx”
Translation
certified true
on
this 30th day of March 2009.
Bella Lewkowicz, Translator
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