Citation: 2007TCC496
Date: 20071010
Docket: 2007-939(IT)I
BETWEEN:
BRIGITTE ROY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] This is an appeal from
a Notice of Canada Child Tax Benefit Redetermination pertaining to the 2002
base year. The only issue is whether the Minister of National Revenue
("the Minister") correctly held that the Appellant was not the
parent who primarily fulfilled the responsibility for the care and upbringing
of her child Sandrine, in respect of the 2002 base year, for the period from
January to June 2004 ("the relevant period").
[2] The Appellant is
the mother of Sandrine, born June 26, 1992. Jean‑Pierre Hervé is
Sandrine's father. The Appellant and Mr. Hervé separated in May
1996. Until December 2003, the Appellant and Mr. Hervé lived in the
city of Québec and had shared
custody of Sandrine. In December 2003, the Appellant moved from Québec to the municipality of Champlain. Sandrine expressed the
wish to move with her mother to Champlain. Mr. Hervé opposed such a move. He wanted
to have custody of Sandrine because he felt it was important for her to finish
her school year with the Ursulines in Québec. Consequently, Mr. Henri brought
an application for the custody of Sandrine. In a judgment dated
April 8, 2004, Mr. Justice Raymond W. Pronovost of the
Quebec Superior Court awarded custody of Sandrine to her father until June 24, 2004, so that she could
finish her school year with the Ursulines in Québec. However, he granted
Sandrine's mother custody effective June 24, 2004. In his judgment dated April 8, 2004, Pronovost J. granted the following access rights to Sandrine's
mother until June 24 and the following access rights to her father
effective June 24:
[TRANSLATION]
(20) Both parties agree that access
rights should be as broad as possible regardless of who has custody. Access
rights shall be as agreed between the parties, but if no agreement can be
reached, the applicant father shall, as he himself suggested, have the
following access rights:
every weekend (with the exception of
three weeks per year, during which the respondent mother shall have access to
the child Sandrine) from Friday at 5:00 p.m. to Sunday at 7:00 p.m.,
and weekends shall be extended to encompass any pedagogical days or statutory
holidays that immediately precede or follow them;
Easter Sunday in even-numbered years (in
odd-numbered years, Sandrine shall be with the respondent mother);
the first part of Spring Break in
odd-numbered years;
one week during Christmas break every
other year on an alternating basis, and that week shall include Christmas Day
and New Year's Day; and
three weeks during the summer, which
shall be chosen by the applicant father prior to May 1 each year.
It should be noted that the
Appellant testified that she came to an agreement with the father regarding his
access rights to Sandrine for the relevant period. The Appellant, whose
credibility is not in issue, testified that, in accordance with the agreement
with Mr. Hervé, she went to pick up Sandrine at school every Friday during
the relevant period, brought her back to school on Monday morning, picked her
up from school in the afternoon and brought her to her father's house later in
the evening. She added that, during the relevant period, Sandrine stayed with
her on all statutory holidays, all pedagogical days, all days that Sandrine was
sick, and throughout Spring Break. The Appellant even submitted a table
(Exhibit A‑2) showing that she spent more hours with Sandrine than
Mr. Hervé during the relevant period, even though Mr. Hervé had been
awarded custody for that period.
[3] The Appellant also testified that she looked after obtaining
dental and medical care for Sandrine, cared for her when she was sick, bought
her clothes, ensured that her hair was cut, received her report cards, met with
her teachers when the report cards were handed out, attended parent-teacher
meetings, and organized numerous recreational and sports activities for her.
The law
[4] The definition of
"eligible individual" in section 122.6 of the Income Tax Act ("the
Act") read as follows during the relevant period:
"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;
[5] For the purposes of paragraphs (g)
and (h) of the definition of "eligible individual" in
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.
(2) For greater certainty, a
person who files a notice referred to in paragraph (1)(b), (c) or
(d) includes a person who is not required under subsection 122.62(3) of
the Act to file such a notice.
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.
[6] What concerns us here are the conditions in paragraphs
(a) and (b) of the definition of "eligible individual"
in section 122.6 of the Act. Thus, the issue is
(i) whether he Appellant
resided with her child Sandrine during the relevant period; and
(ii) whether the Appellant was
the parent who primarily fulfilled the responsibility for the care and
upbringing of Sandrine during that period.
[7] The first question that we must consider is whether
the Appellant resided with her child Sandrine during the relevant period. In my
opinion, the phrase "resides with", used by Parliament in
paragraph 122.6(a) of the Act, denotes a certain constancy or
permanence of a person's usual living habits in relation to a given place, and differs
from what one might characterize as a visit or a sporadic stay. In light of the
evidence adduced by her in this regard, I find that the Appellant "resided
with" her child Sandrine during the relevant period.
[8] Since I have determined that Sandrine resided with her
mother during the relevant period, I should point out that paragraph 122.6(f)
of the Act establishes a presumption that the Appellant was the person who
primarily fulfilled the responsibility for the care and upbringing of Sandrine.
In this regard, I should note that the evidence disclosed nothing capable of
rebutting this presumption.
[9] Thus, the onus was
on the Respondent to show that the Appellant was not the person who primarily
fulfilled the responsibility for the care and upbringing of Sandrine. In my opinion, the Respondent could
not discharge this onus simply by arguing that custody of the child during the
relevant period was awarded to the father under a judgment and that this gives rise
to a presumption that he was the person who primarily fulfilled the
responsibility for the care and upbringing of the child. In the case at bar,
the Respondent has not satisfactorily shown that the Appellant was not the
person who primarily fulfilled the responsibility for Sandrine's care and
upbringing.
[10] I would have found that the Appellant was
the person who primarily fulfilled the responsibility for Sandrine's care and
upbringing, regardless of whether or not I had found that the Respondent
failed to rebut the presumption to that effect. Indeed, while the factor set
out in section 6302(h) of the Regulations, concerning the existence of a
custody order, must certainly be taken into account, it is not determinative.
The factor set out in section 6302(g) concerning the provision,
generally, of guidance and companionship to the child, must also be taken into
account in this Court's decision. In the instant case, I find that the value of
the provision of guidance and companionship to Sandrine outweighs the value of
section 6302(h), which pertains to the significance of the Quebec
Superior Court judgment (Exhibit A‑1). In the instant case, the
Appellant has satisfied me that she provided more guidance and companionship to
Sandrine than did Mr.
Hervé during
the relevant period.
[11] For these reasons,
the appeal is allowed.
Signed at Ottawa, Canada, this 10th day of October 2007.
"Paul Bédard"
Translation certified true
on this 1st day of November 2007.
Brian McCordick, Translator
Email this Content