Citation: 2007TCC430
Date: 20070725
Docket: 2006-3220(IT)I
BETWEEN:
CHRISTOPHER A. STREITENBERGER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Sheridan, J.
[1] The Appellant, Christopher Streitenberger, is
appealing the redetermination of the Minister of National Revenue of his
entitlement to the Canada Child Tax Benefit for the base taxation years 2001,
2002 and 2003.
[2] In making her
redetermination, the Minister made the following assumptions of fact, as set
out in paragraph 16 of the Reply to the Notice of Appeal:
(a) the
Appellant and Sandra are the natural parents of Adam;
(b) Adam's
date of birth is January 13, 1991;
(c) throughout
the 2001, 2002 and 2003 base taxation years, the Appellant and Sandra were
divorced and lived separate and apart;
(d) the
June 8, 2000 Consent Order provided that:
(i)
the Appellant and Sandra shall have joint custody of Adam;
(ii) the
primary residence for Adam shall be with Sandra; and
(iii) Adam
shall reside on alternate weeks with the Appellant and Sandra
at their residence;
(e) subsequent
to April 2003, Adam resided with the Appellant form Monday to Friday;
(f) subsequent
to April 2003, Adam resided with Sandra from Friday evening to Sunday
evening;
(g) Sandra
moved to Saskatoon in 2003 to obtain work to enable herself to support
Adam;
(h) Adam
stayed in Bruno with the Appellant;
(i) Adam
intends on residing with Sandra in Saskatoon once he graduates from high
school;
(j) throughout
the period of April 2003 to April 2004, the Appellant received $1,960.44
from Sandra for the CCTB, as follows:
|
April 2003
|
$ 221.32
|
|
May 2003
|
221.32
|
|
June 2003
|
221.32
|
|
July 2003
|
261.48
|
|
August 2003
|
115.00
|
|
September 2003
|
115.00
|
|
October 2003
|
115.00
|
|
November 2003
|
115.00
|
|
December 2003
|
115.00
|
|
January 2004
|
115.00
|
|
March 2004
|
230.00
|
|
April 2004
|
115.00
|
|
Total
|
$1,960.44
|
(k) Sandra
has invested her portion of the CCTB into a Registered Educational Savings
Plan for Adam;
(l) Sandra
paid for Adam's clothing and allowances;
(m) Sandra
maintained a separate bedroom for Adam in her home;
(n) Adam
lived with the Appellant who resided with his parents;
(o) Sandra
provides medical insurance for Adam;
(p) Sandra
arranges for transportation for Adam for his medical appointments in Saskatoon;
(q) Sandra
transports and attends Adam's athletic activities;
(r) Sandra
provided Adam with the special soaps and skin cleaners he requires;
(s) Sandra
attends to Adam's educational needs and attended his parent teacher interviews;
(t) pursuant
to Justice Margeson's decision in the Tax Court of Canada of March 14, 2005,
Sandra was entitled to the CCTB and NCBS for Adam for the period
subsequent to April 2003 and was the parent who primarily fulfilled the
responsibility for the care and upbringing of Adam;
(u) the
2001, 2002 and 2003 base taxation years means the months of July, 2002
to June 2003, July 2003 to June 2004 and July 2004 to June 2005, respectively;
(v) the
Appellant received CCTB benefits of $147.37, $2,670.84 and $2,615.86
totaling $5,434.07 for the months of May 2003 to April 2005 in the
2001, 2002 and 2003 base taxation years, as detailed in Schedule A attached
to and forming part of the Reply to the Notice of Appeal (hereinafter
"Schedule A");
(w) the
Appellant was not entitled to receive CCT benefits for the 2001, 2002 and
2003 base taxation years, as detailed in Schedule A; and
(x) the
Appellant was in receipt of a CCTB overpayment of $5,434.07 for the months
of May 2003 to April 2005 in the 2001, 2002 and 2003 base taxation years, as
detailed in Schedule A.
[3] As is evident
from the assumption in paragraph 16(t) of the Reply to the Notice of Appeal,
this is the second time the Court has considered whether the Appellant or his
ex-spouse, Sandra Scott, is entitled to the CTB for much of the same period. In
the Scott appeal, Margeson, J., without giving reasons, held that Ms. Scott was
entitled to the CTB and the Minister redetermined the Appellant’s entitlement accordingly.
It is from that redetermination that the Appellant now appeals. In these
circumstances, it seems to me that it would have been appropriate (indeed,
desirable) for the Minister to have sought, under section 174 of the Income
Tax Act, to join the Appellant as a party to Ms. Scott’s appeal. Had
this been done, two unfortunate results could have been avoided: the family
would not have had to go through judicial proceedings a second time in respect
of the same period on the same issue, and the Court would not have been put in
the embarrassing position of hearing what is, in effect, a kind of appeal of
the decision in the first proceeding.
[4] In any event, at the hearing of the present matter, the Appellant testified on his own behalf and called
his son, Adam as a witness. Ms. Scott was subpoenaed by the Crown. Having
listened carefully to all three, I am satisfied that each parent was
contributing fully, in the context of a joint custody order, to the care and
upbringing of their son. The situation was made more difficult by the fact that
Ms. Scott lived in Saskatoon while the Appellant was living about an hour away
in the community of Bruno, Saskatchewan.
Adam, who was just going into his teens during the relevant time, chose to live
with his father to continue his schooling and sports activities with his
friends in Bruno. Meanwhile, Ms. Scott had to move to Saskatoon to
improve her chances at earning a living. Adam spent almost all weekends with
his mother in the city. Both parents provided Adam with a room in their
respective homes. Notwithstanding the distance between residences, each saw to
and provided for their son’s nutritional, health, recreational, educational and
emotional needs according to their means and availability. Though not relevant
to the determination of CTB entitlement, I note there was no suggestion in the
evidence before me that the payments received by either Ms. Scott or the
Appellant were used for purposes other than Adam’s care and upbringing.
[5] The Act does
not permit either the officials administering the CTB program or the Court
hearing the appeal to impose a shared distribution of the CTB. Having to go
through judicial proceedings to establish a parent’s entitlement to the CTB is
a costly and traumatic exercise for families that are already financially and
emotionally fragile following the marriage breakdown. I am mindful that it is
the duty of Parliament to write the law and that mine is to apply it as written.
I cannot help but wonder aloud, however, if the legislation’s purpose of
providing financial assistance to children in need might be better served if
the Act imposed a statutory presumption of an equal sharing of the CTB between
parents with joint custody of their children, subject to a parent’s satisfying
the Court that such a sharing was inappropriate in the circumstances. What the
answer to this question may be, however, is for others to determine.
[6] In the present case, I am satisfied that the Appellant has successfully
made his case that he was the “eligible individual” for the months of May 2003
to April 2005 of the 2001, 2002 and 2003 base taxation years. The appeal is
allowed and the redetermination is referred back to the Minister of National
Revenue for reconsideration and reassessment, in accordance with the attached
Reasons for Judgment.
Signed at Ottawa, Canada, this 25th day of July 2007.
“G.A. Sheridan”
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