Citation: 2006TCC495
Date: 20061023
Docket: 2005-4446(IT)I
BETWEEN:
LOUISE POULIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Bédard J.
[1] The Minister of
National Revenue ("the Minister") determined, in a Notice of
Redetermination of Canada Child Tax Benefit dated May 20, 2005 in respect of
the 2003 base year, and a Notice of Determination of Canada Child Tax Benefit dated
July 20, 2005 in respect of the 2004 base year, that the Appellant was no
longer the eligible individual in respect of the children of her common‑law
partner Pavlo Stelmazuk ("the father") for the period commencing
in July 2004. The Appellant is appealing from these determinations
under the informal procedure.
[2] After issuing his redetermination
of Canada Child Tax Benefit dated May 20, 2005 against the Appellant
in respect of the 2003 base year, the Minister determined that there were no
overpayments in respect of the period from July 2004 to April 2005.
[3] On July 15, 2005
and September 19, 2005, the Appellant served upon the Minister a Notice of
Objection to the redetermination of May 20, 2005 and the determination of
July 20, 2005, in respect of the base years 2003 and 2004,
respectively.
[4] On
September 23, 2005, the Minister confirmed the redetermination dated
May 20, 2005 and the determination dated July 20, 2005
based on the same facts, that is to say, the facts set out in paragraph 6 of
the Reply to the Notice of Appeal:
[TRANSLATION]
(a)
The Appellant is Pavlo
Stelmazuk's common-law spouse; (admitted)
(b)
Pavlo Stelmazuk is the father of two children:
i)
Kevin, born May 4, 1994, and
ii)
Kamélie, born January 4, 1996; (admitted)
(c)
From the date of the children's births to March
2003, Julie Lavigne, the biological mother, was considered to be the parent who
primarily fulfilled the responsibility for the children Kevin and Kamélie's
care and upbringing; (denied)
(d)
Pavlo Stelmazuk and Julie Lavigne lived together
until August 2000; (admitted)
(e)
Since Pavlo Stelmazuk and Julie Lavigne agreed
to joint custody of the children Kevin and Kamélie, six months' worth of the
child tax benefits were allocated to each spouse for the period from
April 2003 to June 2004; (denied)
(f)
The Appellant, by virtue of the female
presumption, was the tax benefit beneficiary in respect of Kevin and Kamélie
for the period from March to August each year, but Julie Lavigne cashed
the said benefits for the period from September to February each year; (admitted)
(g)
In July 2004, Julie Lavigne notified the
Minister that Kevin and Kamélie lived with her from June 18, 2004 to August 20,
2004, and she claimed the tax benefits for the months of July and August 2004; (admitted)
(h)
On July 28, 2004, the Minister notified Julie
Lavigne that the children were under a joint custody arrangement and refused to
accede to her request; (no knowledge)
(i)
Julie Lavigne served a Notice of Objection on the
Minister in February 2005, complaining that the Minister failed to revise
her tax benefits for the months of July and August 2004; (no knowledge)
(j)
On February 22, 2005, following the service of a
Notice of Objection by Julie Lavigne in respect of the 2003 base year, the
Minister sent the Appellant and the biological mother Julie Lavigne a
questionnaire to fill out, and a request for documents, for the period
commencing in June 2004, in order to determine which of the two was the parent
eligible to receive the child tax benefits in respect of Kevin and Kamélie; (admitted)
(k)
The Appellant provided no documents in response
to the letter dated February 22, 2005, such as notes from dentists,
doctors, school authorities or sports associations, in support of her
application to be considered the eligible parent of Kevin and Kamélie; (admitted)
and
(l)
The Minister determined that he did not consider
the Appellant the eligible individual in respect of the children Kevin and
Kamélie for the 2003 and 2004 base years. (admitted)
Preliminary remarks
[5] Although several
years had elapsed since the separation, acrimony continued to reign between the
Appellant and the father on the one hand, and Julie Lavigne ("the
biological mother") on the other, so I have not taken everything that
these people said in support of their positions on their eligibility for the
child tax benefit at face value. I would add that I read with some
circumspection the laudatory letters that the parties tendered in evidence to
support their positions, especially the letters from relatives and friends.
[6] The Appellant and
the father testified for the Appellant. Only the biological mother and Canada
Revenue Agency appeals officer Serge Grenier testified for the Respondent.
The law
[7] The
definition of "eligible individual" in section 122.6 of the Income
Tax Act was worded as follows at the time:
"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 paragraphs
149(1)(a) or 149(1)(b);
(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 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.
[8] For the purposes of paragraphs (g)
and (h) of the definition of "eligible individual" in
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.
[9] The
only thing that interests us relates to the condition set out in paragraph (b)
of the definition of "eligible individual", namely that the parent of
the qualified dependant must be the one who "primarily fulfils the responsibility for the care
and upbringing of the qualified dependant" having regard to the factors in
section 6302 of the
Regulations.
[10] Thus, we will consider the evidence in light of the factors in section
6302 of the Regulations.
The factors in paragraphs 6302(a),
(b) and (g) of the Regulations
[11] The evidence
discloses that both of the parents supervised the daily activities of their
children in essentially the same way and attended to their daily needs when
they had custody of them. Both parents also showed that they maintained a
secure environment; each of them resided in a single-family residence in which
each of the children had their own room. This settles the matter of paragraphs
6302(a), (b) and (g) of the Regulations.
Educational activities
[12] Both parents were
involved in their children's school activities in essentially the same way:
they went to the school regularly to meet with their children's teachers and
participate in parents' meetings. They both received their children's report
cards and helped them with their school work. The evidence discloses that only the biological
mother paid for the children's school supplies and items because the father
could not afford to do so. It should also be noted that the biological mother
invested in an education savings plan that was opened in order to pay for her
children's post-secondary studies.
The children's health
[13] The Appellant's main
complaint about the biological mother is the children's poor dental health. The
Appellant also holds the biological mother responsible for numerous cancelled,
missed or postponed dental appointments. Lastly, she complains that the
biological mother concealed from the father the many illnesses contracted by
the children. In summary, the Appellant tried to show that the biological
mother was irresponsible without actually proving what she (and the
father) had done with respect to the children's health. At most, the
Appellant's evidence in this regard discloses that the father went with his children
a few times to the dentist's office, and that she occasionally paid for the
children's medicine. The biological mother, for her part, tendered a large
amount of documentation which
clearly showed that from the children's birth to the end of the period in
question, she was the person who primarily obtained medical care for her
children both periodically and whenever needed, and who brought them to the
places where such care was provided. The biological mother also clearly showed
that she was the person who primarily defrayed these medical expenses.
Recreational, athletic or similar activities
[14] The evidence
discloses that all the parents took part in the educational, recreational and
athletic activities of their children in the sense that they arranged and
participated in them. Specifically, the biological mother enrolled her children
in dance, gymnastics and hockey classes. She went with her children to these
classes most of the time. She also explained that she went to the movies with
her children and went on bicycle rides with them. She added that she played
board games with them. The Appellant testified that she and the father
preferred to do activities with their children rather than enrol them in all
sorts of classes. She explained that they played hockey and many board
games as a family. Lastly, the Appellant added that they went on many
outings with the children (Granby Zoo, Biodome, fishing trips, and trips
to Niagara Falls). This evidence shows that all the parties were involved in
the educational, recreational and cultural activities of their children, but in
different ways, in that each focussed on activities that corresponded to their
values, interests and means.
Conclusion
[15] The two parties
before me, that is to say, the children's biological mother on one side, and
the Appellant (and the father of the children) on the other, clearly did their
best, under generally difficult circumstances, to give as much attention as
possible to the children whose custody they shared, and to bring them up and
care for them. Each of them looked after the children in their own way, based on
their personal values and means. Each person was involved in the children's
activities. Each of them played a role that their means permitted.
[16] Where the evidence
on the whole does not tip the scales clearly in favour of either party, one
would wish to find a solution that accords with the parties' general intent to
share the custody of their children equally, an intent that they generally
agreed upon and that they honoured in the case at bar.
[17] Unfortunately, except
where the parties agree to share the child tax benefit on a half-yearly basis
(in which case Revenue Canada has an administrative practice that accepts this)
it is not possible to divide the benefit, as the court held in Her Majesty
the Queen v. Marshall, [1996] F.C.J. No. 431 (T.D.).
[18] Given the factors
that are to be taken into consideration and are based on care, attention and
participation, and given the evidence adduced in the case at bar, I must find
that the Appellant has not met her burden of proving, on a balance of
probabilities, that she met the condition set out in paragraph (b) of
the definition of "eligible individual" in section 122.6 of the
Act, namely, that she was the person who, during the period in issue, primarily
fulfilled the responsibility for the care and upbringing of the students.
[19] The Appellant should
understand that in rendering this decision, I am not finding that she (and the
father) were bad people or did not ably meet their responsibilities with
respect to the care and upbringing of the children during the period in
question.
[20] The appeals are
therefore dismissed.
Signed at Ottawa, Canada, this 23rd day of October 2006.
"Paul Bédard"
Translation
certified true
on this 13th day
of July 2007.
Brian McCordick,
Translator
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