Citation: 2007TCC572
Date: 20070928
Docket: 2007-1555(IT)I
BETWEEN:
SHAWN ROSE,
ROBERT KERR,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] These appeals
were heard together. The issue is who of the two Appellants was, from November
2004 to August 6, 2005, the principal caregiver of the Appellants’ son,
James Kerr.
[2] The assumptions
of fact made by the Minister of National Revenue (the "Minister"),
respecting Mr. Kerr, are described in paragraph 6 of the Reply to the
Notice of Appeal (the "Reply") as follows:
a) The Appellant was married to Shawn Rose;
b) From the marriage there were two children, a daughter Erin
born on November 17, 1986 and a son James born August 11, 1988;
c) Following a separation the Appellant and Shawn Rose
entered into an Agreement on Provisional Measures dated
September 1, 2004;
d) In accordance with the terms of the Agreement on
Provisional Measures the Appellant, from October 15, 2004, was to
share the duplex at 61 and 59 Greenfield Street with Rose Shawn
(59 Greenfield Street upstairs for the Appellant and downstairs
61 Greenfield Street for Shawn Rose);
e) In accordance with the terms of the Agreement on
Provisional Measures the children were to decide the residency of their
choice and would have equal access to either 59 or 61 Greenfield Street;
f) On August 4, 2005 the Minister received an
application for the CCTB and the GSTC benefits for the two children from the
Appellant for the period starting after October 22, 2004;
g) Following the receipt of the application from the
Appellant, an agent from the Canada Revenue Agency communicated with
Shawn Rose to confirm with whom the children were living;
h) Shawn Rose confirmed that the children were living
with the Appellant;
i) On November 10, 2005 Shawn Rose called the agent
at the Canada Revenue Agency and denied that she had told the agent that the
children were not living with her from October 22, 2004;
j) On November 17, 2005, the Minister issued to the
Appellant and Shawn Rose a questionnaire in regards to the residence, care
and upbringing of Erin and James;
k) Based upon the submissions with the questionnaires and the
submissions received from the Appellant at objections it was concluded that no‑one
was the eligible individual for the CCTB and the GSTC;
l) For all relevant periods up to October 2004 the Minister
had provided the CCTB and GSTC for the children Erin and James to
Shawn Rose as the eligible individual.
[3] At the time of
hearing, Mr. Kerr stated that it was only regarding James that he was
applying for the Canada Child Tax Benefit ("CCTB") and the Goods and
Services Tax Credit ("GSTC").
[4] The assumptions
of fact made by the Minister in the appeal of Mrs. Rose, not being that different
from those made respecting Mr. Kerr’s appeal, need not to be reproduced.
[5] Since there was
no debate as to whom was the principal caregiver in respect of the daughter
Erin and that the evidence showed that Erin resided with her mother at all the
time at issue and that the latter provided her with shelter and food,
Mrs. Rose, is therefore the principal caregiver of Erin.
[6] It has to be noted here that 61 Greenfield Street,
mentioned at subparagraph d) of the Reply, was the residence of the family
before the separation. After the separation, Mrs. Rose stayed there and
Mr. Kerr moved upstairs at 59 Greenfield Street.
[7] Mr. Kerr produced, as Exhibit A‑1, the
Agreement on Provisional Measures. Paragraph 15 of this Agreement is
entitled "Residency of the Children": The children will decide the
residency of their choice and will have equal and total access of both
residences. The last paragraph is entitled "Custody": The
parties will have the joint custody of their children.
[8] In his notice of
appeal, Mr. Kerr has stated that his son had lived with him since his
separation from his wife. In his letters to the various agents involved in this matter, he mentioned
that he had set up a bedroom for his son in his dwelling and that it was where the
latter spent most of his time. The computer, video games, awards, pictures,
clothing, fold‑out bed and personal effects were there in this bedroom. At the hearing, he repeated that his son resided with
him the vast majority of the time.
[9] Mr. Kerr stated that he drove his son to school
every morning. Asked by the Court where James had
his breakfast, he answered that usually James did not have breakfast before
going to school.
[10] Mrs. Rose at the hearing, as she had done in her
notice of appeal, denied having ever admitted to the Minister’s agent as is
mentioned in subparagraph h) of the Reply, that her children were not
living with her because it was the exact reverse situation.
[11] Mrs. Rose testified that her son came down to sleep every evening, at his mother’s
place in his own bedroom, although too often, in her view, at too late an hour.
James had always kept the bedroom that he had had when the abode was his parents’
home. He had his breakfast in the morning at her place and dinner at night
there as well. Often, at the beginning, Mr. Kerr would have dinner with
them as well. James took his lunch at school.
[12] Mrs. Rose also took care of her son’s laundry.
[13] Both parents participated in the Parents/Teachers meetings.
Mr. Kerr paid for the school activities.
[14] James never changed his civic address, as shown by his
driving permit.
[15] Mrs. Rose evaluates that she provides between 80%
or 90% of her son's food and as clothing goes, approximately 60% of the
purchases. She makes the medical appointments for both children and accompanies
them to their appointments.
Analysis and conclusion
[16] Section 122.5
of the Income Tax Act (the "Act") defines "eligible
individual" with respect to the GSTC, as follows:
"eligible individual", in relation to a month specified for a taxation
year, means an individual (other than a trust) who
(a) has, before the specified month,
attained the age of 19 years; or
(b) was, at any time before the
specified month,
(i) a parent who resided with their child, or
(ii) married or in a common-law partnership.
[17] Section 122.6
of the Act defines "eligible individual" for the purposes of
the CCTB as follows:
"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 (b), and
(e) is, or whose
cohabiting spouse or common-law partner is,
a Canadian citizen or a person who
[...]
(f) where a 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;
[18] These definitions
require residence of the qualified dependant with the individual.
[19] It is my view
that the son James did not reside with Mr. Kerr but with Mrs. Rose.
James’ bedroom was not at the father’s premises. It had been kept at the
mother’s premises and it was the only one. It is also at the mother’s premises
that James took his meals, where he washed and where his clothes were washed.
[20] The evidence showed that the son never slept on the folding
couch. It is true that he would stay at his father’s place during the evenings to
use the computer, but he always came down to sleep at his mother's place, although
quite late and later than his mother would have liked him to do.
[21] The person who provides shelter and food, provides
residence, and, in this aspect, the mother, had the principal role if not the
total role. It is also of importance that James did not change his civic
address.
[22] Mr. Kerr cannot be considered as an eligible
individual, because he did not reside with the qualified dependent as is
requested by the definitions of "eligible individual".
[23] I found that James resided only with Mrs. Rose. For
the purpose of the CCTB, she has to be found the parent who primarily fulfils
the responsibility for the care and upbringing of the qualified dependant.
[24] Where a 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. This presumption will not apply in the circumstances provided by
section 6302 of the Income Tax
Regulations, which reads as follows:
6302. Factors -- 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.
[25] There is no reason to doubt that Mr. Kerr was not
attentive to his son's needs and was not participating in his life. The mother
did not dispute that there was an affectionate relationship between the son and
his father. To the contrary, she was pleased with this.
[26] However, the evidence showed that James took all his meals at his mother’s place,
his laundry was done by her, she looked after his clothing, she participated as
well as the father in his school activities. Taking all these elements into
account, I find that Mrs. Rose was the parent who primarily fulfilled the
responsibility for the care and upbringing of the qualified dependent for the
purpose of the Canadian Child Tax Benefit.
[27] The appeal of
Mrs. Rose is allowed. The appeal of Mr. Kerr is dismissed.
Signed at Ottawa, Canada, this 28th day of September 2007.
"Louise Lamarre Proulx"
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