Citation: 2008TCC193
Date: 20080521
Docket: 2007-3570(IT)I
BETWEEN:
YOUNES AJAMI ARAB,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Angers J.
[1]
The Appellant is
appealing from a Canada Child Tax Benefit (CCTB) redetermination for the 2005
base year, a Universal Child Care Benefit (UCCB) redetermination for the 2005
base year, and a Goods and Services Tax Credit (GSTC) redetermination in
respect of the 2005 taxation year.
[2]
These redeterminations
were made after the Minister of National Revenue ("the Minister")
determined that, as of September 2006, the Appellant was no longer the
eligible individual in respect of his three children. The issue to be decided
is as follows: who was the eligible individual as of that date?
[3]
By reason of these
redeterminations, the Minister calculated that there was a $910 CCTB
overpayment for the 2005 base year, a $119 GSTC overpayment for the 2005 taxation
year, and a $600 UCCB overpayment for the 2005 base year.
[4]
The Appellant and his
wife immigrated to Canada from their native Syria in 2002. They had
one child at the time. Their second child was born in 2003 and their third was
born in February 2005. However, the couple separated in February 2005,
shortly after the birth of their last child. The Appellant's wife apparently
left the family home with the children, but the Appellant claims that the
children spent several days a week with him.
[5]
In the spring of 2006, the
Appellant's wife filed an application for interim relief and child custody in the
Quebec Superior Court. On May 25, 2006, the Quebec Superior Court
issued a consent interim relief order stating that the Appellant's wife would
have custody of the three children, and that the Appellant would have access to
the children by mutual informal arrangement, made in advance by telephone, at
least two days a week. This interim relief was agreed upon by the Appellant and
his wife pending a parental evaluation ordered by the Court on
May 11, 2006. However, the parental evaluation refers to an order
dated April 12, 2006.
[6]
On July 27, 2006, the
Appellant and his wife agreed to vary the provisional relief in order to enable
the wife to travel abroad — specifically,
to return to Syria in order to visit her ailing mother at her bedside. The new
order provided that the Appellant would have custody of the three children
during the wife's trip. The wife also agreed to return to Canada in time
for the beginning of the eldest child's school year, and to resume interim
custody of the three children. Further, the wife agreed to provide medical
certificates regarding her mother's health, and the order states that the
Appellant would bring a motion for the custody of his children on September 25, 2006.
[7]
The Appellant and his
wife went before the Quebec Superior Court on October 25, 2006,
and consented to a third order. The preamble of their agreement refers to an
expert psychosocial assessment in progress, and to the fact that someone had made
a report to the DPJ [Youth Protection] but that no measures had been taken.
The Youth Protection social worker recommended that the father's
access rights be set out clearly and precisely and that they be complied with. Accordingly, the
order states that the wife has custody of the three children and that the
Appellant has access to them on alternate weekends from Saturday at 10 a.m.
to Sunday at 6 p.m. starting October 28, 2006, and that he is to
give notice 24 hours in advance if he is unable to exercise his right.
The order also provides that the Appellant and the wife are not to contact
each other except with respect to access to the children and in emergencies.
[8]
A divorce judgment was
rendered in May 2007, but the safeguard measures were not finalized at
that time. The Appellant and the wife agreed to await a supplementary
psychosocial evaluation report. They agreed that the wife would retain custody
of the three children and that the husband would have access to one child each
weekend on an alternating basis. The wife is responsible for the
children's appointments and for having them followed up by the various
professionals concerned with their welfare. The Appellant is entitled to the
children's school records and medical records. The Appellant and his wife are
not to discuss their case in front of the children and are not to communicate
with each other.
[9]
Following the separation,
the wife was the CCTB recipient. On July 30, 2006, after she
left for Syria, the Appellant filed a CCTB application with what was then the
Canada Customs and Revenue Agency. Since he was unable to get his wife's signature, he stated that the ground for
his application was that she had been outside Canada, in Syria,
since August 3, 2006. Strangely, however, the application was
signed on July 30, 2006. In any event, the Appellant became the CCTB
recipient. On October 13, 2006, after returning from her trip and
realizing that this had occurred, the wife applied for the benefits herself. An
audit revealed that the Appellant was the eligible individual for
August 2006 and that his wife became the eligible individual thereafter,
so there were notices of determination establishing that, as of September 2006,
the Appellant had been receiving overpayments of the benefits and credits
described above for the 2005 base year.
[10]
Even though the
Superior Court's orders state that the wife has custody of the three children
and that he only has access rights, the Appellant maintains that his children
were with him five or six days a week and that his wife only had them two or
three days a week. He testified that this is how things were done prior to
August 2006 and that this continued even after his wife took the children
back in September 2006. In support of his allegations, he tendered a
series of documents, including reports from the various experts involved with
his children, his own involvement in the care received by his children, and a
variety of correspondence and calendar excerpts from November and
December 2006 and the first three months of 2007, as examples of how
frequently his children were with him at home. He claims that his wife never
complied with the orders and that things were fine only on paper.
[11]
However, the
documentation in question contains some indications that the children lived
with their mother and that the visits with their father were less frequent than
he claims. In his report dated March 2, 2007, Dr. Alain Lebel, after
meeting with the Appellant, wrote that the Appellant deplored the fact that he was
not seeing his children more often, because, since November 2006, he had
been seeing them only every other weekend. Another report concerning one of the
children, issued by the child development clinic of the Sainte-Justine
university hospital, states that the child had been living with his mother and
had been seeing his father every other weekend since February 2005.
[12]
The report is based on
an assessment done on March 1 and March 7, 2007. In another
report dated June 4, 2007, a speech-language pathologist who saw one
of the children wrote that they were currently living with the wife and that
the Appellant saw them regularly. Further on, the report says that one must
take into account the bilingualism situation and the fact that the child spends
more time with the mother, who speaks to the child solely in Arabic.
[13]
An emergency record
dated August 30, 2006, and signed by the Appellant, lists the child's
address as the mother's. The date coincides with the wife's return from Syria,
and the address is the one stated in her lease. In addition, on development
questionnaires dated August 9 and August 12, 2007, for each of the
children, the Appellant states that they live with their mother. However,
the Appellant's involvement is very clear, and it can be seen that he had
regular contact with the children, that he worked with the various
professionals on the preparation of the different evaluations and assessments
that were required, and that he fulfilled his fatherly role.
[14]
The Appellant's wife
provided the Court with another version of the circumstances surrounding her relationship
with the Appellant and the custody of the children. They separated in
February 2005 in the wake of violent acts, and the Appellant was required,
by court order, not to communicate with her. The children stayed with her from
that point onward, and the Appellant picked up the children at her residence on
Saturday and brought them back on Sunday. She obtained interim custody orders
pending the evaluation and kept interim custody until August 2006, when
she went away in order to be at her mother's bedside. She was the one who, on the
advice of her lawyer, suggested a variation of the custody order that would
remain in place until she returned. She returned on August 29, 2006,
and resumed custody of the children, subject to visitation rights for the
father every other weekend, without denying him the right to see them upon
request. An incident with Youth Protection had no effect on the custody
order, and the children continued to live with their mother in her apartment
until August 2007, when she agreed to grant custody of the children to the
Appellant despite the fact that the child care experts recommended that she be
granted custody.
[15]
It is also beyond doubt
that the wife's evidence clearly establishes that she looked after the children
very well, and that, despite her trouble communicating in French, she
managed to be understood with the assistance of an interpreter. She went
with her children to see the child care professionals and looked after the
children's essential needs. Her testimony was, in fact, supported by the social
worker assigned to her case. Furthermore, it is clear that the children were at
each of their parents' homes at some point, since each of them tendered letters
from neighbours, or from a landlord, attesting to the fact that the children
were noisy. However, this does not show how much time the children spent at
each parent's residence.
[16]
In order to be eligible
for the GSTC, one must meet the conditions that I have identified in the
definitions of "eligible individual" and "qualified dependant"
contained in section 122.5 of the Income Tax Act ("the
Act"), reproduced below:
Section 122.5: Definitions
(1)
The definitions in this subsection apply in this
section.
"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 nineteen years; or
(b) was, at any time before the specified
month,
(i) a parent who lived with their child, or
(ii) married or in a common-law relationship.
"qualified dependant" of an individual, in relation to
a month specified for a taxation year, means a person who at the beginning of
the specified month
(a) is the individual's child or is dependent
for support on the individual or on the individual’s cohabiting spouse or
common-law partner;
(b) resides with the individual;
(c) is under the age of 19 years;
(d) is not an eligible individual in relation to
the specified month; and
(e) is not a qualified relation of any
individual in relation to the specified month.
Section 122.6 of the Act defines "eligible
individual" 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,
(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.
[17]
As for the Canada Child
Tax Benefit, the following definitions apply:
"base taxation year" in relation to a month means
(a) where the month is any of the first 6 months of a
calendar year, the taxation year that ended on December 31 of the second
preceding calendar year, and
(b) where the month is any of the last 6 months of a calendar
year, the taxation year that ended on December 31 of the preceding calendar
year;
"return of income" filed by an
individual for a taxation year means
(a) where the individual was resident in Canada throughout
the year, the individual's return of income (other than a return of income
filed under subsection 70(2) or 104(23), paragraph 128(2)(e) or
subsection 150(4)) that is filed or required to be filed under this Part for
the year, and
(b) in any other case, a prescribed form containing
prescribed information, that is filed with the Minister.
"cohabiting
spouse or common-law partner" of an individual at any time means the
person who at that time is the individual’s spouse or common-law partner and
who is not at that time living separate and apart from the individual and, for
the purpose of this definition, a person shall not be considered to be living
separate and apart from an individual at any time unless they were living
separate and apart at that time, because of a breakdown of their marriage or
common-law partnership, for a period of at least 90 days that includes that
time;
[18]
Section 2 of the Universal
Child Care Benefit Act defines "eligible individual" as follows:
"eligible
individual" means a person who is an eligible individual for the
purpose of Subdivision a.1 of Division E of Part I of the Income Tax Act.
[19]
In Lapierre v.
Canada, 2005 TCC 720, [2005] T.C.J. No. 538 (QL), Dussault J.
aptly summarized the conditions set out in the definition of "eligible individual"
and the concept of residence set out therein. I shall reproduce
paragraphs 12 and 13 of the decision:
12 For the purposes of the Canada Child Tax Benefit,
the definition of "eligible individual" found in Section 122.6
of the Income Tax Act (the "Act") sets out a certain
number of conditions that an individual must satisfy at "a given time".
For purposes of calculating the Benefit pursuant to subsection 122.61(1),
account is to be taken of the eligible dependents with respect to which a
person is the eligible individual at the beginning of each month. That is the "given
time" referred to in the definition of "eligible individual"
in Section 122.6 of the Act. So the determination as to whether an
individual satisfies the conditions set out in the definition is made on the
basis of the situation prevailing at the beginning of each month. The first
condition for an individual to be considered an "eligible individual"
is stated in paragraph (a) of the definition of this expression which requires
that this individual "reside with the dependent". It is with respect
to this condition only that the Minister made the determinations in issue.
13 Although residence is the fundamental concept
applied to determine if a person is subject to income tax under the Act,
that term is nonetheless not defined therein and it is the courts that have
attempted to establish its scope. Essentially a question of fact, a person's
residence in a given place is determined by a certain number of criteria of
time, object, intention and continuity that do not necessarily always carry the
same weight and which can vary according to the circumstances of each case.
(see Thomson v. M.N.R., [1946] S.C.R. 209). All things considered,
residence implies a certain constancy, a certain regularity or else a certain
permanence according to a person's usual lifestyle in relation to a given place
and is to be distinguished from what might be called visits or stays for
specific purposes or of a sporadic nature. When the Act sets as a
condition to reside with another person, I do not consider it appropriate to
attribute to the verb "to reside" a meaning which deviates from
the concept of residence as it has been developed by the courts. To reside with
someone is to live or stay with someone in a given place with a certain
constancy, a certain regularity or else in an habitual manner.
[20]
The burden is on the
Appellant to show, on a balance of probabilities, that he is the "eligible
individual" for the purposes of the CCTB, GSTC and UCCB, and that he meets
the conditions contained in the definitions of that term. In the case at bar,
there is plentiful evidence that the parents looked after their children and properly
fulfilled the responsibility for their care and upbringing, despite the fact
that their own relationship was marred by numerous problems. The first
condition that must be met in order for an individual to be an eligible
individual is that the person must reside with the dependant or dependants — in the case at bar, the three children.
The parents' evidence with respect to this question is conflicting in that
the Appellant claims that the children are with him five or six days a week and
with his wife two or three days a week, whereas the Appellant's wife claims
exactly the opposite for the relevant periods, with the exception of
August 2006, a month in which, by her admission, the Appellant was
residing with the children.
[21]
What makes the
Appellant's burden of proof difficult to overcome is that his claims contradict
the statements of fact in all the Quebec Superior Court orders concerning
corollary relief, custody and access, all of which orders were, in fact, signed
with the Appellant's consent. The Appellant acknowledges that his wife has
custody of the children and that he only has access every other weekend.
He consented to this state of affairs three times, and that, in my
opinion, is highly inconsistent with his claims. The contents of certain expert
reports also refer to the fact that the father only has access rights. In
addition, I cannot disregard the development questionnaire (Exhibit I‑5)
which he himself signed in August 2006, and on which he stated that the
children were living with their mother. There is nothing concrete in the
evidence that enables me to conclude that this situation has changed, at least
until August 2007. With respect to this question, I will rely on the
statements by the child psychiatrist (Exhibit A‑3) in
February 2007, who wrote, after meeting with the Appellant, that the Appellant
deplored the fact that he did not have the children more often because, since
November 2006, he was seeing them only every other weekend.
[22]
Based on the evidence
as a whole, I find that the wife was the person who resided with the children,
in the sense that they lived in the wife's home in a constant, regular or
habitual manner at the beginning of each month within the period contemplated
by the notice of determination, as of and including the period from September 2006
to August 2007.
[23]
For these reasons, the
appeal is dismissed.
Signed at Ottawa, Canada, this 21st day of May 2008.
"François Angers"
Translation
certified true
on this 22nd day
of October 2008.
Brian McCordick,
Translator
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