Citation: 2007TCC492
Date: 20070910
Docket: 2006-2657(IT)I
BETWEEN:
FRANÇOIS VIGEANT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[OFFICIAL ENGLISH TRANSLATION]
Bédard J.
[1] The Minister of National Revenue (the
Minister), by way of a notice of redetermination dated February 20, 2006,
revised the Appellant’s child tax benefits for the periods from September 2004
to February 2005 and from September 2005 to January 2006, and determined that
the Appellant was not entitled to the amounts of $2,561.73 for the 2003 base
taxation year and $2,028.38 for the 2004 base taxation year.
[2] The Minister also revised, by way of a
notice of redetermination dated January 27, 2006, the Appellant’s Goods and
Services Tax credit, for the periods from October 2004 to January 2005 and from
October 2005 to January 2006, and determined that the Appellant was not
entitled to the amounts of $171 for the 2003 taxation year and $173.50 for the
2004 taxation year.
[3] The Appellant appealed these
redeterminations under the informal procedure.
[4] On or around March 13, 2006, the
Appellant served on the Minister a notice of objection to the redetermination
of February 20, 2006, in respect of the 2003 and 2004 base taxation years.
[5] On June 27, 2006,
the Minister confirmed the redetermination of February 20, 2006.
[6] I will immediately point
out that the Appellant did not serve on the Minister a notice of objection to
the redetermination of January 27, 2006, for the 2003 and 2004 taxation years.
Therefore, the Appellant could not appeal from the redetermination of January
27, 2006, in respect of the Goods and Services Tax credit.
[7] In this case, the only
issue to determine was whether the Appellant was the eligible individual within
the meaning of section 122.6 of the Income Tax Act (the Act) for
the periods from September 2004 to February 2005 and from
September 2005 to January 2006.
The Facts
[8] The Appellant and
Nina Messier are the parents of Sarah Vigeant, born October 11, 1996 and
Maude Vigeant, born March 22, 1999. Since their separation, the Appellant
and Ms. Messier have had shared custody of the children. Since September 2004,
the children have been with their mother from Monday at 8:30 a.m. to Friday at
8:30 a.m. and with their father from Friday at 8:30 a.m. to Monday at 8:30 a.m.
The Appellant and Ms. Messier did not have an agreement on sharing of child tax
benefits.
The Law
[9] The definition of “eligible individual” at
section 122.6 of the Act at the time was worded 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 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.
[10] For the purposes of paragraphs (g) and (h) of the
definition of “eligible individual” at 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.
[11] It should also be
understood from the mode of computation of the benefit payable that is found at
section 122.61 of the Act that the minimal period, for the purposes of benefit
payments, is one month and that benefits of an amount corresponding with one
month must be paid to whomever was the eligible individual at the beginning of
the month, i.e. the person who resided with the dependant a the beginning of
the month and who, at that date, assumed primary responsibility for the care
and upbringing of the qualified dependant.
[12] Although the Act
provides that only one of the two parents is the “eligible individual” during a
given month, the Canada Customs and Revenue Agency (the Agency) has developed a
policy of shared eligibility which acknowledges that there can be, in the case
of shared custody, two eligible individuals for the same child. Thus, the
Agency allows each parent to be entitled to the benefit for six months
alternately, for as long as the two parents agree to share the benefit on a
half-yearly basis or as long as one of the parents does not appeal, to the
Agency’s appeals division, from the Agency’s initial determination that the two
parents were both eligible individuals for the same child. In such cases, it
appears that the Agency’s appeals division strictly applies the Act to
determine which of the two parents is the “eligible individual.”
Analysis and conclusion
[13] It should be pointed
out that only the Appellant testified in support of his position and that he
did not file any documentary evidence with regard to the condition set out in
paragraph (b) of the definition of “eligible individual,” i.e. the
parent of the dependant must be the one who primarily fulfils the
responsibility for the care and upbringing of the qualified dependant, at the
same time taking into consideration the factors established at section 6302 of
the Regulations. The Appellant’s testimony was also silent in respect of this.
In this matter, the Appellant had the onus of proving that the care and
upbringing of the children were not primarily carried out by the female parent
of the child, but rather by him. He did not do so. Therefore, I am of the
opinion that the Minister was entitled to revise the child tax benefits for the
relevant periods and determine that the Appellant was not entitled to the
amount of $2,561.73 for the 2003 base taxation year and $2,028.38 for
the 2004 base taxation year.
[14] In this case, the
Appellant was mostly interested in having me condemn the Agency’s
administrative policy and declare it illegal. In respect of this, the Appellant
argued that only Parliament can provide for the proportional sharing of the
child tax benefit. The Appellant explained that his request to the Court to
have the Agency’s administrative policy declared illegal was aimed, above all,
at forcing parliament to make the necessary legislative changes to ensure a
fair division of the child tax benefit, in particular when there is acrimony
between the parents who have joint custody of children, acrimony which makes
the division of the child tax benefit on a half-yearly basis impossible.
Indeed, the Appellant is convinced that if the Agency could no longer meet the
wishes of parents who agree to share such a benefit on a half-yearly basis, the
parents would revolt and put the necessary pressure on parliament to make the
legislative changes required so that the child tax benefit could finally be
divided fairly by all parents who have shared custody of their children,
whether there is acrimony or not.
[15] I must first point
out that I do not have jurisdiction to ask the Agency to stop practising such
an administrative policy, which, I concede, is contrary to the Act. Basically,
when the Court is seized of an appeal under the Act, its jurisdiction is
limited to ruling on that appeal,
(a) by
dismissing it;
(b) by allowing
it and:
(i)
cancelling
the assessment;
(ii)
modifying
the assessment;
(iii)
referring
the assessment back to the Minister for reconsideration and reassessment.
[16] I hesitate to
condemn the Agency’s administrative practice, because it at least serves the
interests of two parents who agree to share the child tax benefit on a half-yearly
basis. However, it seems obvious to me that certain legislative changes are
necessary. In cases where there is shared or joint custody (which has nothing
to do with the reasonable or structured visitation rights of the past), it
would not be difficult to provide for the division of the child tax benefit on
certain conditions. The division performed by the Minister based on the
evidence presented would apply until modified by a court of appeal. These
decisions made after consideration of the facts supplied by the parties in
questionnaires or other means of communication would probably give rise to very
few disputes.
[17] For these reasons,
the appeals are dismissed.
Signed at Ottawa, Canada, this 10th day of September
2007.
“Paul Bédard”
on this 24th day of October 2007.
Gibson Boyd, Translator
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