Citation: 2007TCC701
Date: 20071207
Docket: 2007-1530(IT)I
BETWEEN:
DIANE DUFOUR,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif J.
[1] This is an appeal
from a decision wherein the respondent determined that the appellant was not
the eligible individual for the period from February to June 2005 and from July
to October 2005, thereby generating overpayments of $383.37 for the 2003
base taxation year and $301.57 for the 2004
base taxation year.
[2] The respondent’s
decision was based upon the following assumptions of fact:
a) The appellant
is the spouse of Michel Morin;
b) Michel Morin is
the father of Marie-Pier Morin, born November 11, 1989;
c) Marie-Pier
Morin’s mother is Chantal Perreault;
d) During the
periods at issue, Marie-Pier Morin was living in her mother’s home;
e) During the
periods at issue, the Minister determined that Ms. Perreault was primarily
fulfilling the responsibility for the care and upbringing of Marie-Pier Morin.
[3] The appeal raises
the following issue:
Did the Minister correctly revise the
Appellant’s child tax benefit amounts and correctly determine that the
overpayments were $383.37 for the
2003 base taxation year and and $301.57 for the 2004 base taxation
year?
[4] Only
an eligible individual within the meaning of section 122.6 of the Income Tax
Act (the Act) may apply for the Canada Child Tax Benefit. An
eligible individual is defined as follows in section 122.6 of 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,
(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 purposes 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;
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.
[5] The
criteria for determining what constitutes care and upbringing of the child are
set out in section 6302 of the Income Tax Regulations (the Regulations):
6302. For the purposes of paragraph (h) of the
definition of "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
[6] The appellant was
represented by her spouse, the father of the minor child in question in this
appeal. He began by admitting the facts set out in paragraphs a), b) and c),
which I shall reproduce hereunder:
a) The appellant
is the spouse of Michel Morin;
b) Michel Morin is
the father of Marie-Pier Morin, born November 11, 1989;
c) Marie-Pier
Morin’s mother is Chantal Perreault;
[7] From the outset,
the appellant’s position was delicate—precarious even—because two rather
important facts supported the respondent’s decision, namely, that the father
was making support payments to the child’s mother and that he was doing so for
the period covered by the appeal.
[8] The appellant
herself, the child’s father acting as appellant’s representative, Mr.
Denis Grégoire and the mother of the mother of the teenage girl, or, in
other words, the girl’s maternal grandmother, all testified in support of the
appellant’s case.
[9] The respondent’s
witness was the teenage girl’s mother, defined by the respondent as the
eligible parent. She stated that the teenage girl had resided with her at all
times during the period from February to June 2005 and from July to October
2005.
[10] In support of her
testimony, the mother emphasized the fact that the address for her daughter
appearing in various school documents and others was the same as her address.
She spoke of her feelings for her daughter.
[11] Meanwhile, the
father, who, as stated above, was acting as the representative of his common-law wife, the subject of the overpayment claim, asserted very firmly but clearly
that the teenage girl had resided with him and his wife during the period in question. He explained
that this was, in fact, his daughter’s choice—a choice he had always respected.
On several occasions, he expressed his frustration towards the child’s mother
and her audacity in disputing the indisputable fact of the child’s place of
residence.
[12] The appellant also
testified. Forthcoming and reasonable in her testimony, she explained plainly
and clearly that, indeed, the child had resided with her and her husband. She
further stated that she herself had taken the initiative of informing the
office responsible for determining eligible-individual status that the child
had decided to return to her mother.
[13] I do not think it
possible to have a more absolute and total contradiction: each parent claims
that the teenager resided with them over a clearly defined period. However, as
it happens, this obvious contradiction does not pose a serious problem because
the mother’s testimony simply does not measure up to the appellant’s. The
former was vague, confused and unspecific, and the mother was manifestly
uncomfortable, whereas the appellant testifed plainly, precisely and calmly. I
have no doubts about the sincerity of the appellant’s testimony. The effect of
this, of course, is that the mother’s substandard testimony will be rejected.
[14] Whom to believe?
Which version to accept? Which version to reject? I have no hesitation in
rejecting the mother’s version and accepting the version of the father’s
spouse, namely the appellant in this case.
[15] Why do I reject the
mother’s version? I do not deny that the mother is someone who had the best
interests and welfare of her daughter at heart. I am even persuaded that she
did what she considered needful to enable her daughter to become a mature,
responsible adult. Is that sufficient reason to conclude that her daughter
resided in her home during the period in question? It actually could be
sufficient, especially since she was receiving support payments and also had
custody of the child.
[16] In the instant case,
I question the veracity of her testimony relating to the child’s place of
residence for the period at issue. In this regard, she relied on documents
indicating that her daughter’s address was the same as hers, which was
completely legitimate, given that she had custody. As an aside, I should say
that if the evidence supporting the appellant’s case had not been so clearly
preponderant I would have dismissed the appeal.
[17] The appellant testified
plainly, specifically and very reasonably, with neither malice nor frustration.
She explained that when the teenager expressed the desire to reside in the
appellant’s home with her father, the appellant’s spouse, she took her in.
[18] She also stated
that, similarly, she respected the girl’s wish to live in a different place at
the end of the period. A few hours after her departure, the appellant, on her
own initiative, went to the authorities responsible for determining the
eligible parent to inform them that the child was no longer residing in their
home.
[19] The appellant’s
representative called on a friend of the couple, Denis Grégoire, to testify.
Mr. Grégoire stated that he went to the appellant’s home on a regular basis and
saw the teenager there quite often—regularly even. According to him, she was in
fact living there.
[20] The appellant’s
representative, Mr. Morin, asked the maternal grandmother to testify
against her own daughter. The grandmother acknowledged that her granddaughter
had resided in the home of the appellant and her former son-in-law, but she was
unable to provide the exact dates. As a result, the testimony has no effect on
the evidence, other than to highlight the fact that this was a very bold move
that might have just as easily backfired. Therefore, the effect of the
testimony is neutral. However, the decision to have this witness testify is
indicative of an unusual level of confidence on the part of the appellant and
her husband as to the merit of the appeal.
[21] The appellant’s
husband recently initiated judicial proceedings, specifically an application to
vary corollary relief signed on September 6, 2007 (Exhibit A-2). On its face,
the application was made subsequent to the period at issue; however, paragraph
4 of the application states as follows:
[translation]
4. Since the last
order was made awarding custody of Marie‑Pier and Jean‑Michel to
their mother, a number of changes have occurred, namely that:
a) Marie-Pierre
lives in an apartment and has a job;
b) the child
Marie-Pierre lived with the applicant from January 25, 2005 to October 1, 2005;
c) on July
30, 2007, Jean-Michel left his mother’s residence and now lives full-time with
his father;
[22] The application is
supported by an affidavit. It was consented to and judgment followed.
[23] The facts set out in
paragraph 4 of the application are clear and specific. If these were false
allegations, the mother should have ensured that they were corrected.
Furthermore, the Court cannot imagine why the father would have considered it a
good idea to assert such things in his application if they were lies.
[24] These are not
anodyne allegations that the mother could refute on the basis of a
misinterpretation or a mistaken perception; they are significant assertions. On
its own, this is not sufficient cause for finding that the appellant’s case is
valid; it does however validate the strong perception dictated by the evidence.
[25] And that perception
lines up with the logic of the appellant’s very credible testimony, confirmed
by her husband’s and a third party’s testimony. Added to this, there was the
appellant’s bold move of calling the maternal grandmother to the witness box:
clearly ill-at-ease, she confirmed that the teenager did in fact live with the
appellant and her husband, for a period of time she was unable to specify.
[26] For all of these
reasons, I am allowing the appeal. The preponderance of the evidence indicates
that, during the periods February to June 2005 and July to October 2005, she
was the eligible parent for the 2003 and 2004 base taxation years.
Signed at Ottawa,
Canada, this 7th day of December 2007.
“Alain Tardif”
Translation certified true
on this 28th day of January 2008.
Stefan Winfield, Translator
Email this Content