Citation: 2008TCC636
Date: 20081121
Docket: 2008-1800(IT)I
BETWEEN:
HELEN M. HALL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb J.
[1]
The
issue in this case is whether the Appellant is entitled to the Canada Child Tax
Benefit (the “CCTB”), the National Child Benefit Supplement (“NCBS”) and the
Goods and Services Tax Credit (“GSTC”) for Cody Hall (“Cody”) for the period
from November 2005 to May 2006 (the “period under appeal”). Initially CCTB
Notices were issued notifying the Appellant that she was entitled to the CCTB
and the NCBS for the period under appeal but following the service of a Notice
of Objection by Jason Hall, Cody’s father, it was determined by the Minister of
National Revenue that Jason Hall was primarily responsible for Cody for the
period under appeal and therefore the Appellant was not entitled to the CCTB
and the NCBS. The Appellant was also notified that she was not entitled to the
GSTC for Cody for the period under appeal. Following the filing of a Notice of
Objection by the Appellant, the Minister of National Revenue confirmed that the
Appellant was not entitled to the CCTB, the NCBS, and the GSTC for Cody for the
period under appeal.
[2]
Under
the Income Tax Act ("Act") the CCTB is treated as an
overpayment of the person's liability under the Act and hence, if the
individual is eligible, such amount is paid to the eligible individual as a
refund of this overpayment. The NCBS is the amount determined for “C” in the formula
used to determine the amount of the “overpayment”. Under subsection 122.61(1)
of the Act the overpayment amount is calculated on a monthly basis. This
subsection provides, in part, as follows:
Where a person ... [has] filed a return of income for the year, an
overpayment on account of the person's liability under this Part for the year
is deemed to have arisen during a month in relation to which the year is the
base taxation year, equal to the amount determined by the formula
1/12 [(A - B) + C + M]
where
A is the total of
(a) the product obtained by multiplying
$1,090 by the number of qualified dependants in respect of whom the
person was an eligible individual at the beginning of the month, and
(b) the product obtained by multiplying $75 by
the number of qualified dependants, in excess of 2, in respect of whom
the person was an eligible individual at the beginning of the month,
…
C is the amount determined by the formula
F – (G × H)
where
F is, where the person is, at the
beginning of the month, an eligible individual in respect of
(a) only one qualified dependant,
$1,463, and
(b) two or more qualified dependants,
the total of
(i)
$1,463 for the first qualified dependant,
(ii)
$1,254 for the second qualified dependant, and
(iii)
$1,176 for each of the third and subsequent
qualified dependants,
(emphasis added)
[3]
Because
the overpayment is deemed to have arisen during a month in respect of a person
who was an eligible individual in
respect of a qualified dependent at the beginning of the month, this
requires a determination of whether any particular person was an eligible
individual at the beginning of each month in respect of that qualified
dependent. As a result, it does not necessarily follow that because one
particular person was the eligible individual in respect of a qualified
dependent at the beginning of a particular month, that the same person would
then be the eligible individual at the beginning of the following month in
respect of that qualified dependent. The definitions of "eligible
individual" and “qualified dependant” in section 122.6 provide that:
"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,
...
and for the purposes of this definition,
(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;
“qualified dependant” at any time means a person who
at that time
(a) has not attained the age of 18 years,
(b) is not a person in respect of whom an amount was
deducted under paragraph (a) of the description of B in subsection 118(1) in
computing the tax payable under this Part by the person's spouse or common-law
partner for the base taxation year in relation to the month that includes that
time, and
(c) is not a person in respect of whom a special
allowance under the Children's Special Allowances Act is payable for the month
that includes that time;
[4]
In
this particular case there is no dispute that the Appellant is the female
parent of the child in question. The Respondent was disputing whether Cody was
residing with the Appellant during the period under appeal. If Cody was not
residing with the Appellant during the period under appeal, then the Appellant
would not be a qualified individual (since she would not be residing with him)
and hence she would not be entitled to the CCTB and the NCBS. If Cody was residing
with the Appellant, the position of the Respondent is that the presumption in
paragraph (f) of the definition of “eligible individual” referred to above was
not applicable and, in any event, Jason Hall was Cody’s parent who primarily fulfilled the responsibility
for his care and upbringing during the period under appeal.
[5]
Paragraph
(g) of the definition of “eligible individual” referred to above provides that
the presumption as set out in paragraph (f) does not apply in prescribed
circumstances. These prescribed circumstances (in which the presumption would
not be applicable) are set out in section 6301 of the Income Tax Regulations
("Regulations") and include, as one of these circumstances,
the situation where "more than one notice is filed with the Minister under
subsection 122.62(l) of the Act in respect of the same qualified
dependent who resides with each of the persons filing the notices if such
persons live at different locations". Assuming that Cody resided with both
the Appellant and Jason Hall, since both Jason Hall and the Appellant filed the
notice with the Minister under subsection 122.62(1) of the Act and since
they were not residing at the same location, the presumption in paragraph (f)
of the definition of “eligible individual” referred to above is not applicable.
[6]
The
GSTC is only determined for eligible individuals in relation to specified
months. Subsection 122.5 of the Act provides in part as follows:
(3) An eligible individual in
relation to a month specified for a taxation year who files a return of
income for the taxation year and applies for an amount under this subsection is
deemed to have paid during the specified month on account of their tax payable
under this Part for the taxation year an amount equal to ¼ of the amount, if
any, determined by the formula
A – B
where
A is the total of
(c) if the individual has no qualified
relation in relation to the specified month and is entitled to deduct an
amount for the taxation year under subsection 118(1) because of paragraph (b)
of the description of B in that subsection in respect of a qualified dependant
of the individual in relation to the specified month, $213,
(d) $112 times the number of
qualified dependants of the individual in relation to the specified month,
other than a qualified dependant in respect of whom an amount is included under
paragraph (c) in computing the total for the specified month,
(emphasis added)
[7]
The
definitions of “eligible individual”, “qualified dependent” and “qualified
relation” are in subsection 122.5 and these are 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.
“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.
“qualified relation” of an individual, in
relation to a month specified for a taxation year, means the person, if any,
who, at the beginning of the specified month, is the individual's cohabiting
spouse or common-law partner.
[8]
Subsection
122.5(4) of the Act provides that:
(4) For the purposes of this section, the
months specified for a taxation year are July and October of the immediately
following taxation year and January and April of the second immediately
following taxation year.
[9]
Subsection
122.5(6) of the Act provides that:
(6) If a person would, if this Act were
read without reference to this subsection, be the qualified dependant of two or
more individuals, in relation to a month specified for a taxation year,
(a) the person is deemed to be a
qualified dependant, in relation to that month, of the one of those individuals
on whom those individuals agree;
(b) in the absence of an agreement
referred to in paragraph (a), the person is deemed to be, in relation to
that month, a qualified dependant of the individual, if any, who is, at the
beginning of that month, an eligible individual within the meaning assigned by
section 122.6 in respect of the person; and
(c) in any other case, the person is
deemed to be, in relation to that month, a qualified dependant only of the
individual that the Minister designates.
(emphasis added)
[10]
At
the commencement of the hearing the Appellant stated that the applicable period
was from October 2005 to May 2006, which includes the month of October 2005
that was not included in the period covered by the ruling made by the Minister
of National Revenue. However, since the evidence was clear that Cody did not
reside with the Appellant prior to Thanksgiving weekend in October 2005 and
since both the CCTB (including the NCBS) and the GSTC are based on the
requirement that Cody must have been a qualified dependent of the Appellant at
the beginning of the month, the Appellant was not an eligible
individual in respect of Cody for October 2005 nor was Cody a qualified
dependent of the Appellant in relation to October 2005 and therefore the period
to be considered in this appeal is the period under appeal.
[11]
The
result of the foregoing definitions and requirements for CCTB (including the
NCBS) and the GSTC mean that, for the purposes of this appeal, the issues are
as follows:
(a)
Was
Cody residing with the Appellant at the beginning of any the months from
November 2005 to May 2006 for the purposes of the CCTB (including the NCBS),
and if so, for which months; and was Cody residing with the Appellant at the
beginning of January and / or April 2006 for the purposes of the GSTC?
(b)
If
Cody was residing with the Appellant at the beginning of any of these months,
was he also residing with Jason Hall at the beginning of the same month or
months?
(c)
If
Cody was residing at the beginning of any particular month or months with both
the Appellant and Jason Hall, which parent, at the beginning of such month or
months, was the parent who primarily
fulfilled the responsibility for the care and upbringing of Cody at that time?
[12]
The
witnesses at the hearing included the Appellant, Jason Hall and Cody. Cody was
born in 1988 and since his birthday in 2005 was shortly before the commencement
of the period under appeal, he would have been 17 throughout during the period
under appeal. Since all three individuals who are key to the determination of
whether Cody was residing with the Appellant or Jason Hall or both, testified,
one would have thought that it would be easy to determine whether Cody was
residing with either or both the Appellant and Jason Hall. However, it is not
that easy in this case.
[13]
Justice Rand of the
Supreme Court of Canada in Thomson v. M.N.R., 1945 CarswellNat 23,
[1946] C.T.C. 51, made the following comments on “residing” and “ordinarily
resident”:
47 The gradation of degrees
of time, object, intention, continuity and other relevant circumstances, shows,
I think, that in common parlance "residing" is not a term of
invariable elements, all of which must be satisfied in each instance. It is
quite impossible to give it a precise and inclusive definition. It is highly
flexible, and its many shades of meaning vary not only in the contexts of
different matters, but also in different aspects of the same matter. In one
case it is satisfied by certain elements, in another by others, some common,
some new.
48 The expression
"ordinarily resident" carries a restricted signification, and although
the first impression seems to be that of preponderance in time, the decisions
on the English Act reject that view. It is held to mean residence in the course
of the customary mode of life of the person concerned, and it is contrasted
with special or occasional or casual residence. The general mode of life is,
therefore, relevant to a question of its application.
[14]
Justice
Bonner in S.R. v. The Queen, 2003 TCC 649, [2004] 1 C.T.C. 2386, made
the following comments:
12 The
word "reside" with as used in the section 122.6 definition of the
term "eligible individual" must be construed in a manner which
reflects the purpose of the legislation. That legislation was intended to
implement the child tax benefit. That benefit was introduced in 1993 with a view
to providing a single nontaxable monthly payment to the custodial parent of a
child. That payment was intended to benefit the child by providing funds to the
parent who primarily fulfilled the responsibility for the care and upbringing
of the child. The threshold test is whether the child resides with the parent.
Physical presence of the child as a visitor in the residence of a parent does
not satisfy the statutory requirement. The word "resident" as used in
s. 122.6 connotes a settled and usual abode. …
[15]
In Lapierre
v. The Queen, 2005 TCC 720, 2008 DTC 4248, Justice Dussault stated that:
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.
[16]
In
my opinion the requirement that a qualified dependent must reside with an
individual for the purposes of the GSTC should be interpreted in the same
manner as the requirement to reside for the purposes of the CCTB.
[17]
Therefore
as a result it is necessary to determine whether Cody lived with the Appellant
and / or Jason Hall on a settled and usual basis. It is not simply a question
of which house he was at on the first day of any given month. Did he have a
settled and usual abode with the Appellant or Jason Hall? Did he live with
either or both of them regularly during this period?
[18]
There
were a total of five witnesses. In addition to the Appellant, Jason Hall and
Cody, the Appellant’s mother and Jason Hall’s current wife also testified. The
testimony was conflicting on several points. There was, however, consistency on
some points. Before the period under appeal Cody was living with Jason Hall.
During the period under appeal there were several periods (in some cases a day
or two and others longer) when Cody did not stay with either Jason Hall or the
Appellant and Cody’s recollection of where he was staying was not clear.
[19]
The
Appellant was receiving social assistance payments and was living in housing
provided by Capital Region Housing Corporation with her two daughters who were
born in 1996 and 1999. As well, the Appellant’s oldest daughter also moved in
with her because she was pregnant. Her baby (the Appellant’s grandchild) was
born in March 2006. There is no doubt that it would have been difficult for the
Appellant to have another child residing with her.
[20]
Cody
was having difficulties when he was living with his father in 2003, 2004 and in
2005 prior to Thanksgiving in October of 2005. Jason Hall’s girlfriend (and later
his spouse) and Cody did not get along well together. Cody also stated that he
was frequently being kicked out of Jason Hall’s house. It appears that it was after
one of his disagreements with his father that he went to the Appellant’s for
Thanksgiving in October 2005 and decided to stay with the Appellant. Although
he would also spend some time at Jason Hall’s house, I find that throughout the
period of appeal Cody regularly stayed with the Appellant. This was confirmed
by the evidence of the Appellant, Cody and the Appellant’s mother.
[21]
Cody
may also have stayed regularly with Jason Hall throughout this period but the
evidence on this part was far from clear. Jason Hall’s spouse testified and she
stated that Cody lived with them throughout the period under appeal. For at
least part of the period under appeal, the room in the basement at Jason Hall’s
house (that had been Cody’s room) was being used by Jason Hall’s father and
Cody, if he stayed at Jason Hall’s home, would have to sleep on the couch. Cody
stated that he had his own room at the Appellant’s apartment.
[22]
While
Jason Hall’s spouse testified that Cody lived with them throughout the period
under appeal, Jason Hall was not as definitive. The following is part of the
exchange between counsel for the Respondent and Jason Hall:
Q MR. NEILSON: Now,
during the period October 2005 to May 2006, did Cody reside with you at your
residence?
A Yes, he did.
Q Okay. Do you believe that you were
the primary caregiver with respect to Cody for that period?
A Yes, I do.
Q Why do you believe that? Just tell
the Court.
A Well, I was there for him when he
needed me. I provided a place for him to come to, which he did, and I provided
him with some food and some guidance and structure which he wasn't getting elsewhere.
So, yes, I believe I was the primary caregiver.
Q So did you maintain a safe and secure
home for Cody to reside in during that period?
A Oh, yes, I did.
Q And did he reside with you during that
period each month? So starting in October 2005, did Cody reside with you in
your residence?
A Yes.
Q November 2005, did he reside with you
in your residence?
A Yes, he did.
Q Now, when you say he did, did he
reside with you every single day or were there periods where he did not reside
with you?
A There was periods where ‑‑
like, as we've heard all day long, that he was probably gone for up to about
three days at a time.
Q So would this have been throughout the
entire period November 2005 to May 2006 or just October and November?
A It was pretty sporadic. It could
have been every month, it could have been every second month. It just ‑‑
it did happen.
…
Q Did he have a room at your residence
the entire time?
A Yes, he did.
Q Did you feed him that entire time?
A Yes, I did.
Q Did you buy him clothes?
A Yes, I did.
…
Q Now, December 2005, where was Cody
living?
A With us.
Q Okay. The entire month of December?
A No, he was staying with Steve because
they were trying out this job thing together. They couldn't get jobs on their
own, they got it together, and they were at Julio's Barrio, so he was staying
there and coming home on the weekends or whenever. Then we went to my mom's
for Christmas, which we picked him up at Steve's and dropped him off at
Steve's, and we were only there for a day.
Q Like, at your mom's?
A Yeah.
Q Okay. And where was this?
A Chetwynd, B.C.
Q Okay. So January of 2006, what was
Cody's status with respect to living with you?
A I don't know.
Q You don't recall?
A No, I don't.
Q Okay. What about February of '06?
A That I don't recall either. I do
recall March.
Q Okay, what happened in March?
A He came to my house and wanted to
take more of his belongings, and we said no because he told us the last time he
went to his mom's that she pawned his stuff off. So I said you can't take your
stuff. Just get in the house, go to bed, let it go. He was all drugged up or
whatever, and he wouldn't and threw me on the ground in the basement and
started jumping on me, and Hallie dragged him off and dragged him outside, and
he tried to fist fight her, so we phoned the police. My dad was there too.
At this time, my mom was in the hospital dying
of cancer. This is why I know from that ‑‑ from those moments
to May where he was because he was at the hospital twice, and he knew that my
mom was dying.
Q Okay. So March 2006, there was some
kind of altercation; is that correct?
A Yeah, and the police came.
Q The police came. So April 2006, did
Cody reside with you notwithstanding that?
A Yeah.
Q He did?
A Yeah.
Q Approximately how much of the month
would he have spent at ‑‑ sleeping ‑‑
A Not much ‑‑
Q ‑‑ and eating at your
house?
A Some mornings he was on the couch,
some mornings he wasn't. We had put him on the couch because my dad was
staying with my mom being in the hospital. Trying to make it easier for my
dad. He didn't have to buy a hotel room or whatever. So we moved sleeping
arrangements around. And Cody was there sometimes, sometimes he wasn't. We
were up at the hospital every day, so I couldn't keep really good tabs on him.
Q Sorry, just let me think for a second.
Okay. So do you know now ‑‑
maybe I've asked you this question already. Do you know where Cody was when he
wasn't sleeping at your house?
A Well, like I said, the Xbox went
missing. When I asked him where it was with 50 some odd games, he said that
him and his mom ‑‑ actually he said his mom pawned it off, so
I assumed he was over there. Up till that point, he hadn't seen her for a
year.
Q Up till what point?
A Up till the point of him going over
there.
Q Which would have been ‑‑
A I don't know, October maybe for his
birthday.
Q October of what year?
A Of '05.
Q So May 2006, am I right in assuming
that something changed?
A My mother died. I was at her
funeral. He phoned me and he asked if he could have his stuff, his ID and all
that stuff. I was never holding that stuff from him. He just wasn't allowed
in the house unless we were there because he was not living up to the rules of
the house. And so when we were home, he should have been home. He wasn't so
he didn't have keys to the house. And I instructed him. When I get back from
the funeral, I'll give your stuff, and that was pretty much the end of Cody.
Q So he ceased residing in your
residence ‑‑
A Yeah.
Q ‑‑ after May 2006?
A Yeah.
[23]
Jason
Hall first testified that Cody lived with him during the period under appeal but
when he was asked specifically about whether Cody was living with him in January
and February, 2006 his answer was that he didn’t know.
[24]
Jason
Hall’s only recollection for March related to an altercation that took place on
March 31, 2006. Cody indicated that he was at the Appellant’s premises when he
cut his hand. The Appellant gave him some Tylenol 3’s that he took for the pain
and he had a beer. His friend drove him to see a doctor who gave him some
additional medication for pain and stitched up his hand. He then went with his
friend to Jason Hall’s house because his friend was going to buy speakers from
Jason Hall. When they arrived, Cody indicated that he started to feel ill. There
was an altercation between Jason Hall and Cody and then between Jason Hall’s
wife and Cody and the police were called. The police report confirms the
testimony of the witnesses that the police drove Cody to the Appellant’s place.
[25]
Since
Cody, who testified for the Appellant and also in rebuttal following the
testimony of Jason Hall and his spouse, was vague on how many days he actually
stayed at Jason Hall’s, and since most of his belongings including his
identification, were at Jason Hall’s house, it seems more likely than not that
he did spend some days at Jason Hall’s house throughout the period under
appeal. In particular since Cody referred to spending nights on the couch at
Jason Hall’s, which presumably took place after Jason Hall’s father came to
stay with Jason Hall in 2006, it seems to me that Cody also resided with Jason
Hall throughout the period under appeal.
[26]
The
issue is then whether the Appellant or Jason Hall was the parent who primarily fulfilled the responsibility
for Cody’s care and upbringing. Section 6302 of the Regulations provides
that:
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.
[27]
With
respect to this issue, the testimony of the Appellant, Jason Hall, and Cody is
more important than the testimony of the other witnesses. The Appellant clearly
stated that she was the parent who was primarily responsible for Cody’s care
and upbringing throughout the period under appeal and Cody confirmed this. Most
of the factors listed in section 6302 of the Regulations do not apply in
this situation. Cody was mainly self sufficient during the period under appeal.
He looked after his own transportation (usually public transit) and when he cut
himself and needed to see a doctor he had a friend drive him. There was also no
applicable court order.
[28]
It
also seems clear that neither the Appellant nor Jason Hall supervised the daily
activities of Cody. Both the Appellant and Jason Hall tried to argue that the
other person’s premises were unsafe. There was an armed robbery that took place
at the Appellant’s premises but there was no evidence that this was the fault
of the Appellant. Therefore the main factor that is relevant in this
determination in this case is the provision, generally, of guidance and
companionship to Cody. It seems to me that Cody would be the best person to
identify which parent was primarily for responsible for this during the period
under appeal. Since Cody identified the Appellant as this person, it seems to
me that it is more likely than not that it was the Appellant who was primarily
responsible for generally providing guidance and companionship to Cody
throughout the period under appeal.
[29]
When
Cody arrived at the Appellant’s home for Thanksgiving in October 2005, he had
very little with him – only what he could carry in his backpack. His clothes,
his other possessions and his identification were at Jason Hall’s house. The
fact that he arrived at the Appellant’s home without his identification and
decided to stay with the Appellant suggests that he went there after he and
Jason Hall had a disagreement over some matter. Cody described his relationship
with Jason Hall during this period as strained. The fact that Cody decided to
stay with the Appellant after Thanksgiving in 2005 is not consistent with Jason
Hall being the parent who was primarily responsible for Cody’s care and
upbringing at the beginning of November.
[30]
With
respect to the month of December, 2005 the evidence was consistent that Cody
travelled with Jason Hall to visit Jason Hall’s mother for Christmas. However they
only stayed one day and the test is applied at the beginning of the month. This
evidence of travelling for a short visit with Jason Hall’s mother at Christmas
is not sufficient to find that, at the beginning of December, 2005 that it was
Jason Hall who was the parent who was primarily responsible for Cody’s care and
upbringing in light of the testimony of the Appellant and Cody that the
Appellant and not Jason Hall was the parent who was primarily responsible for
Cody’s care and upbringing throughout the period under appeal.
[31]
The
main concern I have with the position of Jason Hall that he was the parent who
was primarily responsible for Cody’s care and upbringing during the period
under appeal arises as a result of Jason Hall’s testimony quoted above. First
he stated that Cody resided with him during the period under appeal but when he
was asked specifically about the months of January and February his response
was that he didn’t know where Cody was residing during these months. How could
he be the parent who was primarily responsible for Cody’s care and upbringing
at the beginning of January and February, 2006 if he didn’t know where Cody was
residing in January and February, 2006?
[32]
His
only recollection about March, 2006 was the incident which resulted in the
police being called in to take Cody away. This incident occurred on March 31,
2006. How could Jason Hall be the parent who was primarily responsible for
Cody’s care and upbringing at the beginning of March, 2006 if his only
recollection for March, 2006 (following his statement that he didn’t know where
Cody was residing for the previous two months) is an incident that occurred on
the last day of March and which was an incident in which Jason Hall arranged to
have the police take Cody to the Appellant’s premises? How could Jason Hall be
the parent who was primarily responsible for Cody’s care and upbringing at the
beginning of April (which would be the day after Cody was arrested at Jason
Hall’s house)?
[33]
The
only evidence provided by Jason Hall for May 2006 was Jason Hall’s recollection
of receiving the call from Cody during which Cody indicated that he wanted to
retrieve his belongings and his identification. Given the events that unfolded
at the end of March, 2006, it seems more likely than not that it was the
Appellant, and not Jason Hall who was the parent who was primarily responsible
for Cody’s care and upbringing at the beginning of May, 2006.
[34]
As a
result, I find that the Appellant was the parent who was primarily responsible
for Cody’s care and upbringing throughout the period under appeal.
[35]
The
appeal is allowed, with costs, and the matter is referred back to the Minister
of National Revenue for reconsideration on the basis that the Appellant was an
eligible individual in respect of Cody at the beginning of each one of the
months during the period from November 2005 to May 2006 (inclusive) for the
purposes of determining the CCTB (including the NCBS) of the Appellant and that
Cody was a qualified dependent of the Appellant in relation to the months of
January and April 2006 and the Appellant was an eligible individual in relation
to each of these months for the purposes of determining the GSTC of the
Appellant.
Signed at Halifax, Nova Scotia, this 21st day of November, 2008.
“Wyman W. Webb”
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