Citation: 2006TCC539
Date: 20061010
Docket: 2005-4396(IT)I
BETWEEN:
LOUISE BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] This is an appeal under the informal
procedure against a determination by the Minister of National Revenue
("the Minister") that the Appellant was not the eligible
individual, within the meaning of section 122.6 of the Income Tax Act
("the Act"), in respect of her daughter Marilyn for the period
from February 2003 to March 25, 2004.
[2] 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;
. . .
(e) is, or whose cohabiting spouse or
common-law partner is, a Canadian citizen or a person who
. . .
and for the purpose of this definition,
. . .
(h) prescribed factors shall be considered in
determining what constitutes care and upbringing.
[3] Section 6302 of the
Income Tax Regulations reads as follows:
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.
[4] The Appellant
claims that she was the eligible individual in relation to her daughter Marilyn
during the period in issue. In the Minister's submission, Kenneth Cahill,
the girl's father, was the eligible individual.
[5] The Appellant and Mr. Cahill lived
together for approximately 20 years. They had two daughters together,
including Marilyn, born August
4, 1989.
[6] The parents separated in August 2002. There
does not appear to have been a written agreement. In any event, no agreement
was produced. There was apparently an oral agreement that the custody of
Marilyn, then 13 years of age, would be shared. The same agreement between
the former spouses apparently provided that the Appellant would claim the Child
Tax Benefit.
[7] In May 2003, the parents attempted to
resume cohabitation, but it ended badly after only three weeks, and the
Appellant found refuge in a shelter for more than three months.
[8] After her stay in
the shelter, the Appellant apparently started having her daughter over on alternate
weeks again.
[9] The Appellant produced Exhibit A-2, which
consists of receipts from the dance school. She produced Exhibit A‑1,
a certification of attendance from a pediatric and adolescent medicine clinic.
The document is dated November 17, 2005, and simply attests that
Marilyn was seen by a physician on January 30, 2003, before the period in issue.
[10] The judgment of March 25, 2004, was
tendered as Exhibit I‑1. The agreement to which it refers does not
discuss the prior child custody arrangement. It simply states [TRANSLATION]
"WHEREAS it is Marilyn's wish and desire to live with her father and the
parties wish to respect this freely‑expressed choice
. . . " Further on, it states that [TRANSLATION] "The
plaintiff [Mr. Cahill] shall have the legal custody of the child
Marilyn . . ." It should also be noted that the 2002-03
school report cards attached to that exhibit state her father's address, not
her mother's address, as hers.
[11] The father's
apartment was larger and more comfortable than the mother's.
[12] On March 15, 2005, another judgment (Exhibit I‑4) was
rendered. It granted the mother legal custody effective March 15, 2005.
[13] Ms. Jamie Bouchard, Marilyn's sister,
stated that Marilyn stayed at her mother's place every other week.
[14] Kenneth Cahill stated that, from
February 2003 to March 2005, his daughter Marilyn lived with him all the time.
In fact, she allegedly lived with him continuously since the separation in late
2002. Mr. Cahill claimed that the judgment of March 25, 2004, merely confirmed this situation.
Analysis and conclusion
[15] Counsel for the
Respondent referred to a decision of Chief Justice Bowman of this Court in Pollak v. Canada, [1999] T.C.J. No. 52 (QL), at
paragraph 22, which reads as follows:
Even if the matter were equally balanced I believe the court order
directing that the appellant assume all financial responsibilities for Shai and
that his primary residence be with the appellant would tip the scales in favour
of the appellant. "The existence of a court order, in respect of the
qualified dependant" one of the factors contemplated by paragraph (h) of
section 6302 of the Regulations implies that this court must consider the
contents of the court order. It is clear from both the original court order of
Laforme J. and the revised order of Klowak J. that both judges considered that
the primary responsibility for Shai was to lie with the appellant, whereas he
had none in respect of Dina Philosoph.
[16] The judgment of a
court having jurisdiction to decide custody is an important element in this
Court's analysis of the concept of eligible individual where the two parents'
versions conflict.
[17] The judgment of the
Superior Court (Exhibit I‑1) confirms that it is Marilyn's wish to
live with her father and grants him legal custody. In addition, the
judgment provides that the mother must pay the father support in the amount of
$99.05 per month, retroactive to the date on which the pleadings were served.
This can only imply a previous situation in which the father had primary
custody of his daughter. In addition to this, the report card states Marilyn's
father's address as her own. Both of these elements, as well as the father's
unambiguous testimony, tip the scales in favour of the father. He testified without
hesitation and was not contradicted by the Appellant's questioning.
[18] The Appellant said that she is particularly
bothered by the fact that the parties agreed, upon separating, that she would
receive the Child Tax Benefit amount. It appears that the parties may
initially have wanted shared custody, but that the daughter, immediately or
soon thereafter, expressed her wish to live permanently and solely with her
father. Based on the judgment of March 25, 2004, the mother tacitly
assented to this wish. From that point onward, the father was the eligible
individual within the meaning of the Act. I must make my decision based on this
provision of the Act, not the initial agreement between the parties. The
initial agreement can be litigated in another court.
[19] Consequently, the appeal must be
dismissed.
Signed at Ottawa, Canada, this 10th
day of October 2006.
"Louise Lamarre Proulx"
Translation certified true
on this 20th day of July 2007.
Brian McCordick, Translator
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