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Citation: 2006TCC405
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Date: 20060720
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Docket: 2005-1210(IT)I
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BETWEEN:
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DENIS THÉRIAULT,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
[OFFICIAL
ENGLISH TRANSLATION]
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REASONS FOR JUDGMENT
Tardif J.
[1] This appeal pertains to the Canada Child Tax
Benefit ("the CCTB"). It concerns the base years 2000, 2001 and
2002. The periods covered by the tax benefit are the periods from September
2001 to June 2002, July 2002 to June 2003 and July 2003 to
October 2003. The amounts in issue under the determinations are $2,593 for
the 2000 base year, $2,672 for the 2001 base year and $954.80 for the 2002 base
year.
[2] In making and ratifying the determinations for
the years in issue, the Minister of National Revenue
("the Minister") relied on the following assumptions of fact:
[TRANSLATION]
(a) During the periods in issue, the Appellant cohabited with Louise
Gagnon in a conjugal relationship.
(b) There are two daughters of this relationship: Natacha, born
August 21, 1990; and Stéphanie, born March 9, 1992.
(c) The Appellant is also the father of Laura-Véronique Tremblay
Thériault, born August 21, 2000, from his relationship with Annie
Tremblay.
(d) During the period in issue, the Appellant and Louise Gagnon had
custody of the three children.
(e) The child tax benefits for the three children were paid to Louise
Gagnon.
[3] The facts set out in subparagraphs (a), (b), (c)
and (e) were admitted to, and subparagraph (d) was admitted to in part.
[4] The issue is whether the Minister correctly
revised the Appellant's child tax benefit by determining that the overpayments
amounted to $2,593 for the 2000 base year, $2,672 for the 2001 base year and
$954.80 for the 2002 base year.
Facts
[5] The Appellant, Denis Thériault, is the father
of three children whom he had with two different partners. He married Louise
Gagnon and they had two children prior to their February 29, 2000, divorce.
Ms. Gagnon obtained custody of her two children. The Appellant also has another
child named Laura-Véronique. She was born August 21, 2000, and her
mother is Annie Tremblay.
[6] In November 2000, the Gagnon-Thériault couple
resumed cohabitation as spouses. Ms. Tremblay came to live with the couple
along with Laura-Véronique, but, on March 28, 2001, she left their home and
entrusted the custody of Laura‑Véronique to the Appellant. The Appellant was
awarded custody of Laura‑Véronique in a judgment rendered by the Quebec
Superior Court in 2001.
[7] Thus, effective March 28, 2001, the Appellant
had sole custody of his daughter Laura-Véronique and was primarily responsible
for her care, maintenance and upbringing from the physical, psychological,
intellectual and financial standpoints.
[8] Ms. Gagnon accepted Laura-Véronique early
on, but she clearly put the Appellant on notice that she did not intend to have
a parental relationship with her because she was not Laura-Véronique's mother. The
reality is that the Appellant was exclusively responsible for Laura-Véronique.
[9] Hence, the Appellant applied for the CCTB for
his daughter in July 2001. He received the benefits until
September 2003, when the Canada Revenue Agency ("CRA") notified him that it had re-evaluated the
situation.
[10] In November 2003, the Appellant received a
notice of assessment claiming back all the amounts received as CCTB for Laura-Véronique.
The Minister determined that the Appellant was not entitled to the following
amounts:
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(a) 2000 base year
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$2,593.00
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(b) 2001 base year
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$2,672.00
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(c) 2002 base year
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$954.80
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$6,219.80
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[11] The amounts above were simultaneously paid to
Ms. Gagnon during the same period. In 2004, Ms. Gagnon and the
Appellant separated, and she left him custody of all three children.
Applicable provisions
122.6. In this
subdivision,
. . .
"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;
252(1). In this Act, words referring to a child of a taxpayer include
. . .
(c) a child of the taxpayer's spouse or common-law partner.
Regulations
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.
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.
Analysis
[12] Under paragraph (f) of the definition of
"eligible individual" in section 122.6,
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.
Here, by reason of the legal fiction in
paragraph 252(1)(c), Ms. Gagnon is considered Laura-Véronique's mother
even though she is not her biological mother. However, paragraph (g) states
that paragraph (f) can be rebutted and does not apply in circumstances
prescribed by regulation.
[13] Regulation 6301 contemplates four different
situations in which the mother or an eligible individual declares in writing to
the Minister that the father must
be considered the parent who
primarily fulfils the responsibility for the care and upbringing of each of the
qualified dependants.
[14] Neither Ms. Gagnon nor the Appellant made a
declaration in writing or an application in this regard. In Cabot v. The
Queen, Docket 97‑3206(IT)I, August 24, 1998, [1998] T.C.J. No. 725
(QL), Rip J. held that the four circumstances described in Regulation 6301
are not exhaustive.
[15] Regulation 6302 can also serve to rebut the
presumption set forth in paragraph (f), supra. At
paragraphs 8 and 9 of his judgment, Rip J. wrote as follows:
[8] A plain reading
of the relevant sections of the Act and the Regulations suggests no intention
by the draftsman that the presumption in section 122.6 is limited to the
circumstances listed in subsection 6301(1) of the Regulations. None of the
circumstances set out in Regulation 6301(1) contains a single factor that one
may reasonably consider to have anything to do with the care and upbringing of
children. The circumstances in Regulation 6301(1) are merely procedures to
facilitate the administration of the child tax benefit. Factors that are to be considered
in determining what constitutes care and upbringing of a child are set out in
Regulation 6302 of the Regulations . . .
[9] The draftsman
did not intend that only the four circumstances in subsection 6301(1) of the
Regulations apply to reverse the presumption in section 122.6. Section 6302 of
the Regulations sets out the criteria to determine which person qualifies as
the eligible individual where more than one person applies for the child tax
benefit with respect to a child. It also serves as a guide to rebut the
presumption when a male person applies for the child tax benefit.
[Footnote omitted.]
[16] Thus, has the Appellant established that he is
the eligible individual in that he was primarily responsible for the care and
upbringing of Laura‑Véronique as contemplated by paragraph (b) of
section 122.6?
[17] At the hearing, I heard the testimony of the
Appellant's loved ones, who clearly and unambiguously stated that the Appellant
was solely responsible for the care and upbringing of his daughter. He assumed
all the responsibilities set out in section 6302 of the Regulations.
[18] On the same topic, the Appellant's mother made
reference to Ms. Gagnon's unfavourable attitude toward Laura-Véronique. The
Appellant could not count on Ms. Gagnon: When he was away, he had to
entrust his daughter either to his mother or to his ex-sister-in-law; the
person presumed by the Minister to be her mother categorically refused to take
on the fundamental responsibility that any mother, presumed or otherwise, would
have to take on. When neither of these people were free, the Appellant would
take his daughter with him.
[19] As for the Appellant's ex-sister-in-law, she
corroborated the version described by the Appellant's mother by describing a
similar situation. In addition, she said that the Appellant looked after
washing and feeding his daughter because Ms. Gagnon refused to do so.
[20] Not only was Ms. Gagnon indifferent to
Laura‑Véronique's needs, but in addition, she evinced what can only be
described as a revolting attitude: indeed, the evidence disclosed that if the
Appellant left home to work or attend evening courses, he had to entrust Laura-Véronique
to other members of his family, even if Ms. Gagnon was home.
[21] On these very unusual facts, I find that the
Appellant was the "eligible individual" with respect to Laura-Véronique.
Accordingly, the appeal is allowed and the determinations are referred back to
the Minister for reconsideration and redetermination.
Signed at
Ottawa, Canada, this 20th day of July 2006.
Tardif
J.
Translation
certified true
on this 29th day of
June 2007.
Brian McCordick,
Translator
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